                                                          133 Nev., Advance Opinion el'
                           IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                     THOMAS KNICKMEYER,                                   No. 71372
                     Appellant,
                     vs.
                     THE STATE OF NEVADA, ex. rel.
                                                                                 FILED
                     EIGHTH JUDICIAL DISTRICT COURT,                              NOV 1 6 2017
                     Respondent.
                                                                                           ETH A. BROWN
                                                                                 141
                                                                                       taSE
                                                                                       v
                                                                                         ;       CLERIC.



                                 Appeal from a district court order denying a petition to set
                     aside an arbitration order. Eighth Judicial District Court, Clark County;
                     Nancy Becker, Senior Judge.
                                 Affirmed.



                     Kirk T. Kennedy, Las Vegas,
                     for Appellant.

                     Adam Paul Laxalt, Attorney General, Clark G. Leslie, Chief Deputy
                     Attorney General, Carson City; D. Randall Gilmer, Senior Deputy District
                     Attorney, Las Vegas,
                     for Respondent.




                     BEFORE TAO and GIBBONS, JJ. 1




                           'The Honorable Abbi Silver, Chief Judge, voluntarily recused herself
                     from participation in the decision of this matter.

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                                                       OPINION
                   By the Court, TAO, J.:
                               The principal legal question addressed in this appeal is
                   whether certain provisions of NRS Chapter 289 (namely, NRS 289.040,
                   289.057 and 289.060), intended to provide job-related protections to peace
                   officers employed by law enforcement agencies, apply to bailiffs and
                   marshals employed by the Eighth Judicial District Court. We conclude
                   that judicial marshals are "peace officers" within the meaning of those
                   statutes, but the Eighth Judicial District Court is not a "law enforcement
                   agency" as statutorily defined. Accordingly, the provisions at issue do not
                   apply to Knickmeyer, and we affirm the district court's denial of his
                   petition to set aside the arbitration award in this case.
                                   FACTUAL AND PROCEDURAL HISTORY
                               The Eighth Judicial District Court (EJDC) employed Thomas
                   Knickmeyer first as a bailiff, and then later as an administrative marshal.
                   Knickmeyer's employment was governed by the terms of a written
                   Memorandum of Understanding (MOU) between the Clark County
                   Marshal's Union and the EJDC which stipulated that adverse employment
                   actions, including possible termination, were to be resolved through a
                   series of administrative proceedings, eventually culminating in a binding
                   arbitration hearing if necessary.
                               The EJDC sought to terminate Knickmeyer's employment
                   after co-workers reported several incidents of insubordination, vulgar
                   language, and unprofessional behavior. The allegations included reports
                   that Knickmeyer used foul language in the presence of a co-worker,
                   publicly referred to an attorney who had complained about him as a
                   "bitch," and retaliated against her by ordering that her purse be searched

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                   and re-scanned even after being told it contained no suspicious items. He
                   also openly used an obscenity to refer to a superior officer. In seeking
                   termination, the EJDC noted that Knickmeyer had previously been
                   subject to lesser disciplinary actions in 1997, 2003, and 2013.
                               During the various administrative proceedings below, every
                   hearing officer agreed that termination was appropriate and warranted.
                   Knickmeyer appealed each step as outlined in the MOU, ultimately
                   seeking arbitration. The arbitrator upheld the EJDC's decision to
                   terminate Knickmeyer, finding that a preponderance of the evidence
                   demonstrated that Knickmeyer committed the infractions in question and
                   that termination was an appropriate response. The arbitrator's decision
                   specifically noted that his conclusion was based only upon the immediate
                   incidents at stake and not upon the previous complaints from 1997, 2003,
                   or 2013.
                               Knickmeyer petitioned the district court to set aside the
                   arbitrator's decision, arguing that the EJDC violated his statutory rights
                   under NRS Chapter 289 by improperly disclosing and relying upon his
                   prior disciplinary history as justification for termination in this case. The
                   district court denied the petition, and Knickmeyer appeals, repeating the
                   same arguments made to the district court.
                                                   ANALYSIS
                               This court reviews a district court decision to confirm an
                   arbitration award de novo. Thomas u. City of N. Las Vegas, 122 Nev. 82,
                   97, 127 P.3d 1057, 1067 (2006). But the scope of the district court's review
                   of an arbitration award (and, consequently, our own de novo review of the
                   district court's decision) is extremely limited, and is "nothing like the
                   scope of an appellate court's review of a trial court's decision."    Health
                   Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev. 689, 695, 100 P.3d 172,
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                   176 (2004). "A reviewing court should not concern itself with the
                   'correctness' of an arbitration award and thus does not review the merits
                   of the dispute." Bohlmann v. Printz, 120 Nev. 543, 547, 96 P.3d 1155,
                   1158 (2004) (quoting Thompson v. Tega-Rand Intl, 740 F.2d 762, 763 (9th
                   Cir. 1984)), overruled on other grounds by Bass-Davis v. Davis, 122 Nev.
                   442, 452 n.32, 134 P.3d 103, 109 n.32 (2006).
                               Rather, when a contractual agreement mandates that disputes
                   be resolved through binding arbitration, courts give considerable deference
                   to the arbitrator's decision. Judicial review is limited to inquiring only
                   whether a petitioner has proven, clearly and convincingly, that one of the
                   following is true: the arbitrator's actions were arbitrary, capricious, or
                   unsupported by the agreement; the arbitrator manifestly disregarded the
                   law; or one of the specific statutory grounds set forth in NRS 38.241(1)
                   was met. Clark Cty. Educ. Ass'n v. Clark Cty. Sch. Dist., 122 Nev. 337,
                   341, 131 P.3d 5, 8 (2006); Health Plan of Nev., 120 Nev. at 695, 100 P.3d at
                   176.
                               In this appeal, Knickmeyer asserts that the EJDC violated his
                   due process rights by failing to comply with certain provisions of NRS
                   Chapter 289 relating to discovery. He also contends that the arbitrator
                   manifestly disregarded relevant law and exceeded his authority by
                   determining that Knickmeyer's conduct violated standards not articulated
                   within the MOU and by failing to make required findings of
                   reasonableness. 2



                          2 Knickmeyer'sbrief also includes two other arguments that we need
                   not separately address. He contends that the MOU itself imposed
                   contractual discovery obligations above and beyond those set forth in NRS
                   Chapter 289, but this argument is presented only cursorily and is less
                                                                     continued on next page...
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                   NRS Chapter 289
                                  Knickmeyer first argues that his statutory rights under NRS
                   Chapter 289 were violated because he was not provided with discovery
                   relating to three prior disciplinary incidents (from 1997; 2003, and 2013)
                   that were used against him during the arbitration, in violation of the
                   requirements of NRS 289.040, NRS 289.057, and NRS 289.060.
                                  As an initial observation, however, Knickmeyer waived this
                   objection by failing to ever request any such discovery below or object to
                   any failure to receive it to the arbitrator.   See Carrigan v. Comm'n on
                   Ethics, 129 Nev. 894, 905 n.6, 313 P.3d 880, 887 n.6 (2013) ("Arguments


                   ...continued
                   than cogent. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
                   n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not
                   consider claims •that are not cogently argued or supported by relevant
                   authority). Moreover, Knickmeyer did not raise this argument before the
                   arbitrator, belatedly raising it for the first time only before the district
                   court. See State Bd. of Equalization v. Barta, 124 Nev. 612, 621, 188 P.3d
                   1092, 1098 (2008) ("Because judicial review is limited to the
                   administrative record, arguments made for the first time on judicial
                   review are generally waived by the party raising them."). Consequently,
                   the arbitrator did not make any factual findings relating to whether the
                   EJDC breached the MOU. Without these factual findings, we are unable
                   to address this issue—unlike his argument relating to the applicability of
                   NRS Chapter 289, which presents a pure question of law that does not
                   depend on facts outside of the appellate record. See Nev. Power Co. v.
                   Haggerty, 115 Nev. 353, 365 n.9, 989 P.2d 870, 877-78 n.9 (1999)
                   (explaining that the court would resolve an issue of statutory
                   interpretation not litigated below "in the interests of judicial economy").
                   Finally, Knickmeyer's brief also references an alleged constitutional due
                   process violation, but he merely re-frames his arguments about the scope
                   and application of NRS Chapter 289 and the MOU as due process
                   problems without identifying or discussing any other independent
                   procedural or substantive due process violation.


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                        not raised before the appropriate administrative tribunal and in the
                        district court normally cannot be raised for the first time on appeal.").
                        Moreover, the arbitrator expressly stated that he was not relying upon the
                        prior incidents in reaching his decision and that the instant incident alone
                        provided sufficient grounds for termination. Consequently, any discovery
                        relating to those incidents is entirely irrelevant to the case at hand.   See
                        NRCP 61 ("The court at every stage of the proceeding must disregard any
                        error or defect in the proceeding which does not affect the substantial
                        rights of the parties."); see also Cook v. Sunrise Hosp. & Med. Ctr., LLC,
                        124 Nev. 997, 1006, 194 P.3d 1214, 1219 (2008) ("[W]hat is clear from our
                        caselaw is that prejudice must be established in order to reverse a district
                        court judgment; it is not presumed and is established by providing record
                        evidence showing that, but for the error, a different result might have
                        been reached.").
                                    To overcome these defects, Knickmeyer argues on appeal that,
                        under NRS Chapter 289, all discovery relating to prior disciplinary actions
                        must automatically be provided whether any party individually requests it
                        or not, and whether or not the arbitrator ultimately ended up relying upon
                        it in his final decision. Knickmeyer's argument hinges on two contentions:
                        first, that the statutes in question apply to him as a judicial marshal
                        employed by the EJDC and, second, if they do apply, that they were
                        violated by the EJDC in this case despite his never having requested
                        discovery or objected to its absence. Both contentions must be true for
                        Knickmeyer to win this appeal; if either fails, then we must decide the
                        issue against him.




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                               NRS Chapter 289 grants certain procedural protections to
                   "peace officers" whenever adverse employment actions are initiated
                   against them by their employers.      See NRS 289.010(3).      See generally
                   Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 336-37, 302 P.3d
                   1108, 1114 (2013). Judicial marshals are specifically identified as peace
                   officers in NRS 289.150(4). Knickmeyer thus argues that all of the
                   protections of NRS Chapter 289 must apply to him. Knickmeyer is
                   partially correct in that judicial marshals are "peace officers" covered by
                   the statute and therefore certain sections of NRS Chapter 289
                   indisputably apply to judicial marshals such as him.
                               This, however, doesn't quite resolve the question at hand.
                   Peace officer or not, portions of Chapter 289 apply only to petitioners who
                   are employed by a "law enforcement agency." See, e.g., NRS 289.020(1) ("A
                   law enforcement agency shall not use punitive action . . . ."); NRS 289.025
                   ("the home address of a peace officer and any photograph in the possession
                   of a law enforcement agency are not public information"). Other portions
                   of this chapter do not contain this limitation. See, e.g., NRS 289.810(1) ("A
                   peace officer shall not use a choke hold on any other person"); NRS
                   289.820(1) ("A peace officer shall not engage in racial profiling"). We must
                   presume that the inclusion or omission of these words from different parts
                   of the statute was purposeful.    See Antonin Scalia & Bryan A. Garner,
                   Reading Law: The Interpretation of Legal Texts 170 (2012) NA] material
                   variation in terms suggests a variation in meaning."). Consequently, the
                   plainest and most obvious meaning of Chapter 289 is that many portions
                   of it apply broadly to any peace officer employed by any entity, but other
                   portions apply in a more limited way only to peace officers employed by a
                   "law enforcement agency."

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                                    The statutes that Knickmeyer alleges that the EJDC violated
                        in this case are NRS 289.040, NRS 289.057, and NRS 289.060, 3 which set
                        forth procedures that must be employed before a peace officer can be
                        subjected to adverse employment action. NRS 289.040 prohibits law
                        enforcement agencies from inserting unfavorable comments into the peace
                        officer's administrative file unless certain requirements are met. NRS
                        289.057 governs how a law enforcement agency may investigate
                        allegations of misconduct and initiate discipline, including discovery
                        procedures. NRS 289.057(3)(a) permits the peace officer to review any
                        recordings, notes, and interview transcripts pertaining to the investigation
                        after the investigation has concluded. NRS 289.060 describes how law
                        enforcement agencies may conduct disciplinary hearings.
                                    But all of these statutes expressly apply only when a "law
                        enforcement agency" seeks to impose discipline against one of its peace
                        officers. Thus, these provisions can apply to Knickmeyer only if his
                        employer, the EJDC, can be considered a "law enforcement agency" within
                        the meaning of NRS Chapter 289. This presents a question of statutory
                        interpretation.
                                    We review questions of statutory meaning de novo. Hobbs v.
                        State, 127 Nev. 234, 237, 251 P.3d 177, 179 (2011). In interpreting a
                        statute, we begin with its plain meaning and consider the statute as a
                        whole, awarding meaning to each word, phrase, and provision, while
                        striving to avoid interpretations that render any words superfluous or
                        meaningless.      Haney v. State, 124 Nev. 408, 411-12, 185 P.3d 350, 353


                              3 Knickmeyer    also mentions NRS 289.080 in his brief as a statute
                        that applies to him, but doesn't allege that 289.080 was violated.


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                   (2008). If the Legislature has independently defined any word or phrase
                   contained within a statute, we must apply that definition wherever the
                   Legislature intended it to apply because "[a] statute's express definition of
                   a term controls the construction of that term no matter where the term
                   appears in the statute."   Williams v. Clark Cty. Dist. Attorney, 118 Nev.
                   473, 485, 50 P.3d 536, 544 (2002); 1A Norman J. Singer & J.D. Shambie
                   Singer, Statutes and Statutory Construction § 20:8 (7th ed. 2009). The
                   words of a statute must be given their plainest and most ordinary
                   meaning unless the Legislature clearly used them differently, or the words
                   are used in an ambiguous way. See State v. Catanio, 120 Nev. 1030, 1033,
                   102 P.3d 588, 590 (2004) ("We must attribute the plain meaning to a
                   statute that is not ambiguous." (citing Firestone v. State, 120 Nev. 13, 16,
                   83 P.3d 279, 281 (2004)); see also Scalia & Garner, supra, at 56 ("The
                   words of a governing text are of paramount concern . . . .").
                               NRS Chapter 289 does not contain its own definition of "law
                   enforcement agency." However, NRS 179D.050 and NRS 62A.200 both
                   define the phrase "local law enforcement agency" as referring to a sheriffs
                   office or police department. Furthermore, the word "agency" is typically
                   used by the Nevada Supreme Court and in administrative regulations to
                   refer to subdivisions of the executive branch, not divisions of the judiciary.
                   Cf. NAC 239.690; Las Vegas Metro. Police Dep't v. Blackjack Bonding, Inc.,
                   131 Nev. , n.4, 343 P.3d 608, 613 n.4 (2015). 'We presume that the
                   Legislature enactEs a] statute with full knowledge of existing statutes
                   relating to the same subject." Nev. Attorney for Injured Workers v. Nev.
                   Self-Insurers Ass'n, 126 Nev. 74, 84, 225 P.3d 1265, 1271 (2010) (internal
                   quotation marks omitted). Thus, the plain text of the relevant statutes
                   makes clear that the term "law enforcement agency" does not encompass a

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                     judicial court such as the EJDC. We ought to conclude that the
                     Legislature said what it meant and meant what it said, and we could end
                     our inquiry there.
                                  But there's more.       Knickmeyer's argument betrays a
                     fundamental misunderstanding of the respective roles of the three
                     branches of Nevada government. To conclude that the EJDC is a "law
                     enforcement agency" is to conflate the roles of the judicial and executive
                     branches and to presume that the Legislature used words in a most
                     unnatural way.       See Nev. Const. art III, § 1 ("The powers of the
                     Government of the State of Nevada shall be divided into three separate
                     departments, the Legislative, the Executive and the Judicial; and no
                     persons charged with the exercise of powers properly belonging to one of
                     these departments shall exercise any functions, appertaining to either of
                     the others, except in the cases expressly directed or permitted in this
                     constitution.").
                                  Under our state constitution, the Legislature writes the laws.
                     See Nev. Const. art. 4, § 1; Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d
                     237, 242 (1967). The Judiciary hears justiciable controversies and issues
                     judgments and decrees in individual cases.      See Nev. Const. art 6, § 6;
                     Galloway, 83 Nev. at 20, 422 P.2d at 242. And the Executive "enforces"
                     the laws. Galloway, 83 Nev. at 20, 422 P.2d at 242 ("The executive power
                     extends to the carrying out and enforcing the laws enacted by the
                     Legislature."); see Nev. Const. art. 5, § 7 (the Governor "shall see that the
                     laws are faithfully executed"); see also Morrison v. Olson, 487 U.S. 654,
                     706 (1988) (Scalia, J., dissenting) (prosecuting crimes is a
                     "quintessentially executive function"). The separation of these powers
                     between three independent branches of government with the power to

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                   check-and-balance each other is a central tenet of our constitutional
                   structure and a fundamental bulwark of democratic freedom.                See
                   Morrison, 487 U.S. at 706 (Scalia, J., dissenting) (citing The Federalist No.
                   47 (James Madison) (Random House 1941)); Youngstown Sheet & Tube Co.
                   v. Sawyer, 343 U.S. 579, 635, 640 (1952) (Jackson, J., concurring) ("[T]he
                   Constitution diffuses power the better to secure liberty"; "The purpose of
                   the Constitution was not only to grant power, but to keep it from getting
                   out of hand."); cf. Comm'n on Ethics v. Hardy, 125 Nev. 285, 292, 212 P.3d
                   1027, 1103-04 (2009) (discussing differences between Nevada Constitution
                   and U.S. Constitution). The powers of the EJDC are enumerated in
                   Article 6, Section 6 of the Nevada Constitution, and Knickmeyer does not
                   contend that the EJDC engages in investigating and prosecuting crimes as
                   part of its constitutionally-assigned judicial functions.
                               Thus, the judiciary is not empowered to engage in "law
                   enforcement" functions any more than the executive or legislative
                   branches are empowered to engage in judicial functions.        See generally
                   John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke
                   L.J. 1219, 1230 (1993) ("Separation of powers is a zero-sum game If one
                   branch unconstitutionally aggrandizes itself, it is at the expense of one of
                   the other branches."). The phrase "law enforcement agency" as used in
                   NRS Chapter 289 therefore cannot be naturally read to encompass the
                   EJDC, and the statutes cited by Knickmeyer—NRS 289.040, NRS 289.057,
                   and NRS 289.060, all of which apply only to "law enforcement agencies"—




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                    do not apply to the EJDC. 4 See Mangarella v. State, 117 Nev. 130, 134-35,
                    17 P.3d 989, 992 (2001) (holding that Nevada courts must interpret
                    statutes so that they do not conflict with the state or federal
                    constitutions). The EJDC could not have violated statutes that do not
                    apply to it, and consequently the EJDC committed no discovery violations
                    that would entitle Knickmeyer to relief.
                    Whether the arbitrator exceeded his authority
                                Knickmeyer also argues that the arbitrator exceeded his
                    authority by relying upon the Clark County Marshal's Division Policy and
                    Procedure Manual, and upon certain law review articles, as guidelines for
                    acceptable conduct when the MOU makes no explicit reference to either.
                                When reviewing whether an arbitrator exceeded his powers,
                    this court begins by presuming that arbitrators act within the scope of
                    their authority. Health Plan of Nev., Inc. v. Rainbow Med., LLC, 120 Nev.
                    689, 697, 100 P.3d 172, 178 (2004). Arbitrators can exceed their authority
                    when they act outside the scope of the governing contract, but this court
                    will not vacate an arbitrator's award—even if erroneous—if the
                    arbitrator's interpretation is rationally grounded in the agreement or
                    there is "colorable justification" for construing and applying the contract
                    the way the arbitrator did. Id. at 698, 100 P.3d at 178. Thus, the central
                    question is "whether the arbitrator had the authority under the agreement
                    to decide an issue, not whether the issue was correctly decided." Id.

                          4A  potentially interesting question exists relating to whether, by
                    signing the MOU, the EJDC contractually agreed to assume some of the
                    responsibilities outlined in those statutes even if they otherwise would not
                    have applied. But as noted above in footnote 2, Knickmeyer did not argue
                    this issue before the arbitrator, the arbitrator made no factual findings
                    relating to it, and therefore we need not address it.


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                               The parties agree that the governing agreement here is the
                   MOU. Knickmeyer argues that the MOU did not allow the arbitrator to
                   consider the Clark County Marshal's Division Policy and Procedure
                   Manual, or any other sources such as law review articles, because the
                   MOU did not explicitly reference them. But the arbitrator could have
                   rationally interpreted those sources to represent accurate summaries of
                   the "established rules, regulations or policies of the Courts" that the MOU
                   permits to be considered. See id. ("Arbitrators do not exceed their powers
                   if their interpretation of an agreement, even if erroneous, is rationally
                   grounded in the agreement."). Consequently, "[t]he arbitrator's total
                   findings demonstrate that he was construing the contract, and the record
                   supports more than a colorable justification for the outcome." Id. at 698-
                   99, 100 P.3d at 179. Accordingly, Knickmeyer has not met his burden of
                   demonstrating, by clear and convincing evidence, that the arbitrator
                   exceeded his authority.
                   Whether the arbitrator disregarded the law
                               Knickmeyer's final argument is that the arbitrator consciously
                   disregarded relevant law by failing to determine whether the termination
                   was reasonable in light of less severe forms of discipline. A court may
                   vacate an arbitration decision if the arbitrator manifestly disregarded
                   relevant law. Bohlmann v. Printz, 120 Nev. 543, 545-47, 96 P.3d 1155,
                   1156-58 (2004), overruled on other grounds by Bass—Davis v. Davis, 122
                   Nev. 442, 452 n.32, 134 P.3d 103, 109 n.32 (2006). Relief is "extremely
                   limited" and manifest disregard occurs only when an arbitrator




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                   "recognizes that the law absolutely requires a given result and nonetheless
                   refuses to apply the law correctly." Id.
                                 Here, Knickmeyer's argument is belied by the record. The
                   arbitrator's decision contains numerous references to the available options
                   of progressive discipline and explains quite clearly why Knickmeyer's
                   conduct was "sufficiently egregious" to justify termination without first
                   imposing less severe forms of discipline. Thus, Knickmeyer has not met
                   his heavy burden of showing, by clear and convincing evidence, that the
                   arbitrator consciously ignored applicable law in deciding that termination
                   was appropriate.


                                                   CONCLUSION
                                 For the foregoing reasons, Knickmeyer has failed to
                   demonstrate that the arbitrator either exceeded his authority             Or

                   manifestly disregarded the law, and we affirm the district court's denial of
                   his petition to set aside the arbitration order.




                                                                                      J.
                                                        Tao


                   I concur:
                                   c.

                                                 , J.
                               cZan't
                   Gi bons




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