                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                 KENNETH WILLIAM HILL, III,                             No. 66529
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                                                                             FILED
                 Respondent.                                                 FEB 1 2 2016
                                                                                  K. LINDEMAN
                                                                                             US




                                         ORDER OF AFFIRMANCE
                             This is an appeal from a judgment of conviction, puranant to a
                 guilty plea, of one count of possession of more than one ounce of
                 marijuana. Fourth Judicial District Court, Elko County; Nancy L. Porter,
                 Judge.
                             Appellant Kenneth Hill argues that Nevada's diversion
                 programs preclude his placement in an out-of-state treatment program
                 and thus violate the Privileges and Immunities Clause, see U.S. Const. art.
                 IV, § 2, cl. 1, and the dormant Commerce Clause, see U.S. Const. art. I, § 8,
                 cl. 3. Hill applied for admission into an NRS 453.3363 diversion program,
                 and the district court denied the application on the assumption that an
                 out-of-state program would not be approved by the Division of Public and
                 Behavioral Health. In response, Hill made only a bare statement that he
                 intended to appeal the ruling; he provided no basis for the implicit
                 objection. Issues not preserved below will generally not be considered on
                 appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d 1169, 1173 (1991),
                 overruled on other grounds by Means v. State, 120 Nev. 1001, 1012-13, 103
                 P.3d 25, 33 (2004). While we may consider constitutional issues sua
                 sponte, we "will not do so unless the record is developed sufficiently both
                 to demonstrate that fundamental rights are, in fact, implicated and to

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                   provide an adequate basis for review."    Wilkins v. State, 96 Nev. 367, 372,
                   609 P.2d 309, 312 (1980). The record and arguments before this court do
                   not provide an adequate basis for review.
                                 Hill has not specified any provision of law that meets the
                   threshhold requirement for a privileges-and-immunities claim: that there
                   be discrimination against nonresidents.       See United Bldg. St Constr.
                   Trades Council of Camden Cty. & Vicinity v. Mayor of Camden,        465 U.S.

                   208, 218 (1984). Hill summarizes the district court's conclusion as a
                   holding "that the facility be located in Nevada," then states simply that
                   "[a] tedious review of the Nevada administrative code supports the court's
                   finding" with a footnote to "[s]ee NAC 449 and NAC 458." 2 Assuming
                   without deciding that a prohibition against out-of-state treatment
                   programs is discriminatory against nonresidents—a proposition of which
                   we are highly dubious in this penological setting—Hill nevertheless fails
                   to identify any part of the diversion laws that support the district court's
                   conclusion.
                                 Hill has not identified any provision of the law that violates
                   the dormant Commerce Clause. The dormant Commerce Clause serves to
                   "prohibit[ ] States from advancing their own commercial interests by
                   curtailing the movement of articles of commerce, either into or out of the

                         'While the State implicitly questions the validity of this conclusion
                   when it argues that the statutes are not discriminatory either facially or
                   in effect, Hill elected not to challenge the district court's conclusion in
                   favor of presenting his current arguments against the statute's
                   constitutionality. As it has not been presented to us, we do not reach the
                   question of whether the district court's conclusion was correct.

                            his reply brief, Hill narrows the scope of regulations to NAC
                         2 In
                   458.103 through NAC 458.138.


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                state." Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 560-61,
                170 P.3d 508, 514-15 (2007) (internal quotation marks omitted). Statutes
                that burden interstate commerce are divided into two categories: those
                that affirmatively discriminate either facially or in practical effect, and
                those that only incidentally burden interstate commerce. Maine v. Taylor,
                477 U.S. 131, 138 (1986). Hill argues only the first category and fails to
                identify any portion of the relevant laws that would prevent out-of-state
                treatment programs from applying for or obtaining certification. He thus
                fails to identify any facial or practical discrimination.
                              For the foregoing reasons, we
                              ORDER the judgment of conviction AFFIRMED. 3




                      3 The  parties filed a joint motion to remand this case to the district
                court for an evidentiary hearing in order to create a record as to the basis
                for the district court's ruling and to obtain testimony from the division
                responsible for certifying treatment programs as to what their policies and
                guidelines are regarding out-of-state programs. The motion was denied
                with a comment that "No the extent the parties believe that a remand for
                such a hearing is the appropriate relief in this matter, they may so argue
                in their briefs." Hill v. State, Docket No. 66529 (Order Denying Motion,
                March 20, 2015). While the State noted that such a hearing would have
                been helpful, Hill did not, and neither party argued in their briefs for
                remand for an evidentiary hearing, nor did they request one in the district
                court.

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                cc:   Hon. Nancy L. Porter, District Judge
                      Elko County Public Defender
                      Attorney General/Carson City
                      Elko County District Attorney
                      Elko County Clerk




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