                                                       132 Nev., Advance Opinion    43
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                LAWRENCE SPARKS,                                         No. 69073
                Petitioner,
                vs.
                THE HONORABLE ROB BARE,
                DISTRICT JUDGE, EIGHTH JUDICIAL                             FILED
                DISTRICT COURT; STEVEN
                GRIERSON, CLERK OF THE EIGHTH                                JUN 1 6 2016
                JUDICIAL DISTRICT COURT;                                 CLE
                                                                            TRACIR K. LINDEMAN


                HENDERSON CLERK OF THE
                MUNICIPAL COURT; AND THE
                HONORABLE MARK STEVENS,
                Respondents,
                and
                CITY OF HENDERSON,
                Real Party in Interest.


                             Original pro se petition for a writ of mandamus, writ of
                prohibition, and writ of certiorari.
                            Petition denied.


                Lawrence Sparks, Henderson,
                in Pro Se.

                Adam Paul Laxalt, Attorney General, Carson City,
                for Respondents.

                Josh M. Reid, City Attorney, and Laurie A. Iscan, Assistant City Attorney,
                Henderson,
                for Real Party in Interest.




                BEFORE HARDESTY, SAITTA and PICKERING, JJ.
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                                                 OPINION
                By the Court, PICKERING, J.:
                            NRS 189.030(1) provides that, after a notice of appeal is filed,
                a municipal court has ten days to "transmit to the clerk of the district
                court the transcript of the case [and] all other papers relating to the case
                [along with] a certified copy of the docket." In this original proceeding, we
                are asked to decide whether NRS 189.030(1) confers a duty on a municipal
                court, rather than a misdemeanor appellant, to provide a transcript for a
                defendant's misdemeanor appeal and whether a district court may dismiss
                an appeal for an appellant's failure to obtain transcripts from the
                municipal court. We hold that a misdemeanor appellant is responsible for
                requesting transcripts and, if not indigent, paying for those transcripts.
                We further hold that the district court has the inherent authority to
                dismiss a misdemeanor appeal where the appellant fails to prosecute an
                appeal or comply with the court's orders. Although the district court has
                that authority, dismissal is an extreme remedy, and therefore, the better
                practice is to allow the appeal to proceed and to decide the case based
                upon the documents submitted and any briefs filed. Because the district
                court in this case acted within its jurisdiction and did not exercise its
                discretion in an arbitrary or capricious manner, we deny the petition.
                                                     I.
                            Petitioner Lawrence Sparks was convicted in municipal court
                of failing to stop his vehicle at a stop sign, a misdemeanor offense. He
                appealed the conviction to the district court on April 8, 2015. Less than
                ten days later, the municipal court transmitted the record of its
                proceedings to the district court, which did not include a transcript of the
                trial. At the initial hearing on the appeal in May 2015, the district court

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                       gave Sparks the name and phone number of a transcriptionist to prepare
                       the transcripts for the appeal. The matter was set for a status check in
                       July 2015. Before• the status check, Sparks filed a document labeled
                       "notice of perfection of appeal," in which he argued that he was not
                       required to obtain the transcripts pursuant to NRS 189.030. At the status
                       hearing on July 22, 2015, the district court advised Sparks he was
                       required to obtain the transcripts and indicated that it would continue the
                       matter to a later time. About a week later, the City of Henderson filed a
                       motion to dismiss the appeal because Sparks had not obtained the
                       transcripts. After Sparks confirmed that he had not obtained the
                       transcripts, the district court granted the City's motion to dismiss the
                       appeal. Sparks then filed this petition challenging the district court's
                       order.


                                   Sparks seeks writs requiring the municipal court to provide
                       the transcripts for his misdemeanor appeal and prohibiting the district
                       court from requiring a misdemeanor appellant to obtain and pay for
                       transcripts. Sparks further seeks a writ directing the district court to
                       reinstate his appeal because the district court acted arbitrarily and
                       capriciously in dismissing his appeal based on his failure to obtain
                       transcripts and a writ prohibiting the district court from dismissing an
                       appeal based on the appellant's failure to obtain transcripts.'




                             'Sparks raises a number of other claims challenging his
                       misdemeanor conviction and the proceedings below. We decline to
                       consider them. See NRS 34.020; NRS 34.160; NRS 34.170; NRS•34.320;
                       NRS 34.330.

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                                "A writ of mandamus is available to compel the performance of
                an act that the law requires as a duty resulting from an office, trust, or
                station or to control an arbitrary or capricious exercise of discretion." Int'l
                Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
                P.3d 556, 558 (2008) (footnotes omitted); see also NRS 34.160. A writ of
                prohibition may issue when a district court acts without or in excess of its
                jurisdiction.     See NRS 34.320. Whether to consider a writ petition is
                within this court's discretion, Smith v. Eighth Judicial Dist. Court, 107
                Nev. 674, 677, 818 P.2d 849, 851 (1991), and a petitioner bears the burden
                of demonstrating that extraordinary relief is warranted, Pan v. Eighth
                Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
                                The Nevada Constitution vests the district courts with final
                appellate jurisdiction in all cases arising in the municipal court. Tripp v.
                City of Sparks, 92 Nev. 362, 363, 550 P.2d 419, 419 (1976); see Nev. Const.
                art. 6, § 6. As a general rule, this court has "declined to entertain writs
                that request review of a decision of the district court acting in its appellate
                capacity unless the district court has improperly refused to exercise its
                jurisdiction, has exceeded its jurisdiction, or has exercised its discretion in
                an arbitrary or capricious manner." State v. Eighth Judicial Dist. Court
                (Hedland), 116 Nev. 127, 134, 994 P.2d 692, 696 (2000). An arbitrary or
                capricious exercise of discretion is "one founded on prejudice or preference
                rather than on reason, or contrary to the evidence or established rules of
                law." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-
                32, 267 P.3d 777, 780 (2011) (internal citation and quotation marks
                omitted).




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                                                      A.
                              Sparks argues that the duty of requesting and providing
                transcripts for his misdemeanor appeal rests with the municipal court
                pursuant to NRS 189.030. Sparks further argues that the district court
                should be prohibited from requiring him to obtain and pay for the
                transcripts for his appeal. These issues involve statutory interpretation,
                which we review de novo even in the context of a writ petition. Otak Nev.,
                LLC v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 86, 312 P.3d 491,
                498 (2013).
                              When an appeal is taken from the judgment of a municipal
                court that is a court of record, the district court decides the appeal on the
                municipal court record. 2 See NRS 5.073(1) (providing that "municipal
                court must be treated and considered as a justice court whenever the
                proceedings thereof are called into question" and that an appeal "transfers
                the action to the district court for trial anew, unless the municipal court is
                designated as a court of record"); NRS 189.050 ("An appeal duly perfected
                transfers the action [from justice court] to the district court to be judged
                on the record."). In such an appeal, NRS 189.030(1) provides that the
                municipal court shall "transmit to the clerk of the district court the
                transcript of the case, all other papers relating to the case and a certified
                copy of the docket" within ten days after the notice of appeal is filed.
                Sparks reads this provision as requiring the municipal court to order the
                preparation of transcripts of its proceedings in the case. Sparks further
                reasons that if the statute does not require him to request transcripts,
                then he is not required to pay for the transcripts. We disagree.


                      The Henderson Municipal Court is a court of record.
                      2                                                                    See
                Henderson, Nev., Mun. Code § 2.06.010 (2014).

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                              NRS 189.030 does nothing more than require the municipal
                court to transmit its record, including any transcripts, within a specified
                time after the notice of appeal is filed. NRS 189.030 does not expressly
                require the municipal court to order the preparation of transcripts that
                are not already part of the municipal court record. 3 And absent such a
                statutory requirement, the district court is not precluded by law from
                requiring the appellant to request transcripts that are not part of the trial
                court record at the time the notice of appeal is filed. 4
                              Practical considerations provide further support for our
                reading of NRS 189.030. It would be difficult, if not impossible, for the
                municipal court to have hearings transcribed and transmitted to the
                district court within the ten days allocated in NRS 189.030(1). More
                importantly, the transcripts necessary for appellate review will be
                determined by the issues the appellant wishes to raise on appeal, and only

                       3 We reject any reading of this court's decision in State v. O'Donnell,
                98 Nev. 305, 646 P.2d 1217 (1982), as requiring the municipal court to
                order the preparation of transcripts for a misdemeanor appeal. O'Donnell
                merely holds that "the late filing of the transcript by the justice's court
                does not warrant [the district court's] dismissal of the underlying criminal
                charges against the defendant" on appeal from the justice court judgment,
                Id. at 306, 646 P.2d at 1218; it does not address the issues presented in
                this case.

                      4This   understanding of NRS 189.030 and the district court's
                authority is consistent with the procedure followed in the First Judicial
                District Court with respect to appeals of criminal matters from justice and
                municipal court. See FJDCR 33(2) ("At the time of filing of the Notice of
                Appeal, the appellant shall file a request with the Justice Court or
                Municipal Court that proceedings be transcribed."). It also is consistent
                with our own appellate rules, see NRAP 9(a)(1)(B), which may provide
                guidance to the district courts even though they are not binding on the
                district courts acting in their appellate capacity, see NRAP 1(a).

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                  the appellant knows what the issues will be. Thus, it makes sense to place
                  the burden of requesting transcripts that are not already in the municipal
                  court record on the appellant. Further, because the costs of transcripts
                  may be assessed to a nonindigent misdemeanor appellant, see Braham v.
                  Fourth Judicial Dist. Court, 103 Nev. 644, 647, 747 P.2d 1390, 1392
                  (1987), it is reasonable to require the appellant to designate the
                  transcripts necessary for the appeal so that the appellant may control the
                  costs of the appea1. 5
                               Because the municipal court did not have a duty to order the
                  preparation of the transcripts for Sparks' misdemeanor appeal and the
                  district court may require a nonindigent misdemeanor appellant to obtain
                  and pay for transcripts for a misdemeanor appeal, we conclude that
                  extraordinary relief is not warranted. 6
                                                         B.
                               Sparks argues that the district court should decide
                  misdemeanor appeals on the merits and that the district court acted
                  arbitrarily and capriciously in dismissing his appeal because he failed to
                  obtain the transcripts. The City of Henderson argues that dismissal is an
                  appropriate sanction when a misdemeanor appellant fails to obtain
                  transcripts after being directed to do so.




                        The costs of transcripts may not be assessed to an indigent
                        5
                  appellant, although an appellant who is indigent still bears the burden of
                  requesting transcripts for a misdemeanor appeal.

                        6 There   has been no allegation that Sparks is indigent.

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                            The statutory provisions relating to misdemeanor appeals in
                NRS Chapter 189 do not expressly address dismissal of an appeal for the
                failure to obtain transcripts. Cy. NRS 189.060(1)(a), (b) (providing that a
                misdemeanor appeal may be dismissed for "failure to take the same in
                time" and for "failure to appear in the district court when required"); NRS
                189.065(1) (requiring dismissal if an appeal is not perfected by application
                by the appellant within 60 days after the filing of the notice of appeal to
                have the appeal set for a hearing). We have recognized, however, the
                court's power to dismiss an appeal outside of any statutory authority. For
                instance, this court's appellate rules recognize the authority of the
                appellate court to dismiss an appeal if the parties fail to comply with this
                court's rules regarding transcripts.       See NRAP 9(a)(7). Such authority
                derives from the court's inherent authority, which includes those powers
                "which 'are necessary to the exercise of all others." Roadway Express, Inc.
                v. Piper, 447 U.S. 752, 764 (1980) (quoting United States v. Hudson, 11
                U.S. 32, 34 (1812)). A court exercising its appellate jurisdiction must be
                able to require the orderly and timely processing of appeals with rules and
                sanctions for the failure to follow those rules. And while not specifically
                addressing the appellate jurisdiction of the court, this court has recognized
                the district court's inherent "power to dismiss a case for failure to
                prosecute or to comply with its orders . . . within the bounds of sound
                judicial discretion, independent of any authority granted under statutes or
                court rules."   Moore v. Cherry, 90 Nev. 390, 393, 528 P.2d 1018, 1020
                (1974). We conclude that the inherent authority of the district court
                acting in its appellate jurisdiction permits the court to dismiss an appeal
                for failure to prosecute or comply with the court's orders, including the
                failure to comply with an order to obtain transcripts for the appeal.

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                                       Although t. b district court exercising its appellate jurisdiction
                           has the inherent autho ity to dismiss an appeal for the failure to prosecute
                           or comply with the court's orders, this power should be exercised
                           circumspectly. Inherent powers, "[b]ecause of their very potency,. . . must
                           be exercised with resti aint and discretion" and a "primary aspect of that
                           discretion is the abilii y to fashion an appropriate sanction for conduct
                           which abuses the judicial process."    Chambers v. NASCO, Inc., 501 U.S.
                           32, 44-45 (1991). The failure to obtain transcripts for the court's review
                           undoubtedly presents an obstacle to the court's ability to efficiently
                           process an appeal and/ to consider the merits of an appeal. But dismissal
                           of an appeal is an extreme remedy. A more appropriate sanction for the
                           failure to obtain transcripts in most circumstances would be to allow the
                           misdemeanor appellant to proceed with the appeal and bear the risk that
                           the court will reject any arguments on appeal that are not supported by
                           the record transmitted by the trial court. See Greene u. State, 96 Nev. 555,
                           558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate
                           record rests on appellant."); State v. Stanley, 4 Nev. 71, 75 (1868) ("[T]he
                           burden of establishing error is upon the appellant.").
                                       In this case, Sparks disregarded the district court's repeated
                           directions to obtain the transcripts, and this resulted in his failure to
                           prosecute his appeal. The district court's decision to dismiss Sparks'
                           appeal was not founded on prejudice or preference, nor was it contrary to
                           established law.   See Armstrong, 127 Nev. at 931-32, 267 P.3d at 780.
                           Accordingly, we conclude that the district court did not act arbitrarily and




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                  capriciously in dismissing Sparks' appeal and therefore extraordinary
                  relief is not warranted. 7




                  We concur:




                     /itAA-                    J.
                  Hardesty


                                               J.
                   aa ta




                           7 We
                              deny Sparks' motions to file a reply and for leave to file
                  additional pro se documents.


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