AUBREY GOLDBERG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK AND THE HONORABLE JUDGES THEREOF, Respondents
Goldberg v. Eighth Judicial District Court
Mowbray, Thompson, and Manoukian, JL, concur.
AUBREY GOLDBERG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK AND THE HONORABLE JUDGES THEREOF, Respondents.
AUBREY GOLDBERG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF CLARK AND THE HONORABLE JUDGES THEREOF, Respondents.
No. 10070
December 13, 1977
572 P.2d 521
Aubrey Goldberg, Las Vegas, for Petitioner.
Dickerson, Miles & Pico, Las Vegas, for Respondents.
OPINION
By the Court,
Batjer, C. J.:
In this original proceeding in prohibition, petitioner seeks to prohibit die Eighth Judicial District Court from closing its rule-making meeting to the public. Respondent court scheduled a meeting for September 1, 1977, to consider, inter alia, "proposed rules regarding the selection and duties of trial jurors . . and . . . administrative orders in respect thereto." On August 30, 1977, petitioner obtained an agenda of the scheduled meeting and indicated his desire to attend. Respondent court, through its court administrator, advised petitioner that the meeting was closed to the public. On September 1, 1977, petitioner sought a writ of prohibition, and we stayed all rule-making meetings of the Eighth Judicial District Court pending disposition of his petition.
Petitioner contends NRS ch. 241, as amended by 1977 Nev. Stats, ch. 527, requires the courts of Nevada, when considering rules or administrative orders, to hold open meetings and allow all persons to attend. Therefore, he argues respondent court had no authority to close its rule-making meeting to the public. We disagree. In our view, NRS ch. 241, as applied to judicial bodies, is an unconstitutional infringement on the inherent powers of the judiciary which violates the doctrine of separation of powers.
"It is fundamental to our system of government that the separate powers granted the executive, legislative and judicial departments be exercised without intrusion." City of No. Las Vegas v. Daines, 92 Nev. 292, 294, 550 P.2d 399, 400 (1976).
Pursuant to this doctrine, it is clear that the judiciary, as a coequal branch of government, has inherent powers to administer its affairs, see City of No. Las Vegas v. Daines, cited above; Dunphy v. Sheehan, 92 Nev. 259, 549 P.2d 332 (1976); Sun Realty v. District Court, 91 Nev. 774, 542 P.2d 1072 (1975); Young v. Board of County Comm'rs, 91 Nev. 52, 530 P.2d 1203 (1975); State v. Davis, 26 Nev. 373, 68 P. 689 (1902), which include rule-making and other incidental powers reasonable and necessary to carry out the duties required for the administration of justice. Any infringement by the legislature upon such power is in degradation of our tripartite system of government and strictly prohibited. See Dunphy v. Sheehan, cited above.
Although these inherent powers exist independent of constitutional or statutory grant, see State v. Becker, 174 S.W.2d 181 (Mo. 1943); State v. Superior Court of Maricopa County, 5 P.2d 192 (Ariz. 1931), we have recognized that "[t]he legislature may, by statute, sanction the exercise of inherent powers by the courts, and the courts may acquiesce in such pronouncements by the legislature, . . ." Lindauer v. Allen, 85 Nev. 430, 434, 456 P.2d 851, 854 (1969). Cf. Burney v. Lee, 129 P.2d 308 (Ariz. 1942). Even so, we remain ever mindful that such statutes are merely legislative sanctions of independent rights already belonging to the courts, Lindauer v. Allen, cited above, and where, as here, those statutes attempt "to limit or destroy an inherent power of the courts, [such statutes] must fail." Lindauer v. Allen, 85 Nev. at 434, 456 P.2d at 854.
Petitioner, in an attempt to circumvent this precept, contends NRS ch. 241, as amended, neither limits nor destroys the inherent powers of the court, but merely represents a permissible overlapping of the powers granted to the separate branches of government.
We have previously acknowledged the legislature's power to exercise overlapping ministerial functions, provided those functions could be logically and legitimately traced to a basic source of power. See Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). However, judicial rule-making powers cannot logically and legitimately be traced to the source of legislative power (Article 4 of the Nevada Constitution). Indeed, the only logical and legitimate source of such power is Article 6. Cf. Galloway v. Truesdell, cited above; State v. Fields, 530 P.2d 284 (Wash. 1975).
In summary, the inherent power of the judicial department to make rules is not only reasonable and necessary, but absolutely essential to the effective and efficient administration of our judicial system, and it is our obligation to insure that such power is in no manner diminished or compromised by the legislature. Eminent legal scholars long ago propounded cogent arguments against relying upon legislative management of judicial affairs.
[Legislatures are not held responsible in the public eye for the efficient administration of the courts and hence do not feel pressed to constant reexamination of procedural methods. . . . Court rules, on the other hand, are flexible in application, easy of clarification, and rapid of amendment should amendment be required. They are the work of an agency whose whole business is court business and for whom court efficiency can become a major interest, an agency keenly aware of the latest problems and fully capable of bringing to bear in their early solution a long and solid experience.
Levin and Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. Penn. L. Rev. 1, 10 (1958). See generally, Pound, The Rule-Making Power of the Courts, 12 A.B.A.J. 599 (1926).
Accordingly, the petition for prohibition must be, and is hereby, denied, and the stay order is dissolved.
Mowbray, Thompson, and Manoukian, JL, concur.
NRS 241.020(1) provides:
"Except as otherwise specifically provided by statute, all meetings of public bodies shall be open and public, and all persons shall be permitted to attend any meeting of these bodies."
NRS 241.030(3) provides, in pertinent part:
"3. This chapter does not:
"(a) Apply to judicial proceedings, except those at which consideration of rules or deliberation upon the issuance of administrative orders are conducted."
Nev. Const, art. 3, § 1 provides:
"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 herein expressly directed or permitted."
See McDonald v. Pless, 238 U.S. 264 (1915); Dunphy v. Sheehan, cited above; Matter of Salary of Juvenile Director, 552 P.2d 163 (Wash. 1976); State Ex Rel. Lynch v. Dancey, 238 N.W.2d 81 (Wis. 1976); O'Coin's, Inc. v. Treasurer of County of Worcester, 287 N.E.2d 608 (Mass. 1972); Nassif Rlty. Corp. v. National Fire Ins. Co. of Hartford, 220 A.2d 748 (N.H. 1966); Schavey v. Roylston, 448 P.2d 418 (Ariz.App. 1968); Burton v. Mayer, 118 S.W.2d 547 (Ky.App. 1938). See generally, Commentary, Inherent Power and Administrative Court Reform, 58 Marquette L. Rev. 133 (1975); Mallard, Inherent Power of the Courts of North Carolina, 10 Wake Forest L. Rev. 1 (1974); Dowling, The Inherent Power of the Judiciary, 21 A.B.A.J. 635 (1935).
See, for example, the following statutes which codify our inherent rule-making powers:
NRS 2.120(1), which provides, in pertinent part:
"The supreme court may make rules not inconsistent with the constitution and laws of the state for its own government, the government of the district courts, and the government of the State Bar of Nevada."
NRS 3.025(2), which provides, in pertinent part:
"The chief judge [of the district court] shall:
"(c) Adopt such rules and regulations as are necessary for the orderly conduct of court business."
Cf. Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969); St. Ex Rel. Watson v. Merialdo, 70 Nev. 322, 268 P.2d 922 (1954); State v. Smith, 527 P.2d 674 (Wash. 1974); Sharood v. Hatfield, 210 N.W. 2d 275 (Minn. 1973); Sams v. Olah, 169 S.E.2d 790 (Ga. 1969); Holm v. State, 404 P.2d 740 (Wyo. 1965); Burney v. Lee, cited above. Arnett v. Meade, 462 S.W.2d 960 (Ky.App. 1971). See generally, Wigmore, Legislature Has No Power in Procedural Field, 20 J.Am. Jud. Soc'y 159 (1936).
Nev. Const, art. 6, § 1, provides, in pertinent part:
"The Judicial power of this State shall be vested in a court system, comprising a Supreme Court, District Courts, and Justices of the Peace."