Electronically Filed 4/16/2018 1:09 PM Steven D. Grierson CLERK OF THE COURT Case Number: A-18-770351-W Lmeosooechmm-hmm?t 00-40an SUSAN H. JOHNSON DISTRICT JUDGE DEPARTMENT XXII denied him by VICTOR MILLER, BOULDER CITY MUNICIPAL COURT JUDGE as a result of ?gag orders? issued against him and/or his client, JOHN HUNT, in February 2018. 2. According to the Petition, MR. STUBBS is an attorney who is not only defending MR. HUNT as a result of criminal charges, but he also represents the client as a plaintiff in a federal civil rights lawsuit he lodged against Boulder City for alleged constitutional violations related to MR. arrest. Factually, this Court understands, on June 8, 2016, the Boulder City Police Department, in conjunction with other local police entities, were conducting a crosswalk enforcement activity or, as Petitioner characterizes it, a ?sting operation,?1 where of?cers issued citations to drivers who failed to yield the right of way to a decoy pedestrian within a crosswalk. MR. HUNT apparently was one of those drivers who was issued such a citation. Shortly thereafter, MR. HUNT, believing the police activity to be ?disgusting? and ?unfair,?2 strode back and forth across the street in the same crosswalk in protest. Ultimately, MR. HUNT was arrested by the Boulder City Police Department and charged with failing to yield to traf?c and resisting a public of?cer in violation of NRS 484B.283 and 199.280, respectively.3 According to MR. STUBBS, these charges were dismissed by the former Boulder City Attorney Dave Olsen. 3. On or about May 30, 2017, MR. HUNT ?led his Complaint against Boulder City in the United States District Court, District of Nevada, claiming a violation of his civil rights, stemming from his arrest. See Hunt v. City of Boulder City, Case No. 2:17-cv-01519 CM-NJK, ECF No. 19. According to MR. STUBBS, Boulder City?s then attorney, Dave Olsen, retaliated by ?ling a criminal complaint against MR. HUNT on June 5, 2017, asserting ?ve misdemeanor counts: 1) failure to yield to pedestrian in a crosswalk; (2) failure to place vehicle registration certi?cate in lPetitioner refers to the incident as a ?sting operation,? on p. 4 of his Petition, and according to ReSpondent in his ReSponse, p. 3, the police considered it an ?enforcement activity.? 2See Petition for Writ of Mandamus, p. 4. 3See ReSponse to Petition for Writ of Mandamus, p. and Exhibit A-l attached to ReSponse. In MR. view, MR. HUNT was arrested ?for his First Amendment expression.? See Petition for Writ of Mandamus, p. 4. OO-JON SUSAN H. JOHNSON DISTRICT JUDGE DEPARTMENT XXII vehicle, surrender upon demand of certain persons; (3) impeding ability of driver to yield prohibited; (4) obstruct a public of?cer; and (5) resist a public of?cer.4 Upon Mr. Olsen?s retirement, the new Acting City Attorney,5 STEVE MORRIS, ?chose[] to continue the prosecution of MR. criminal matters are being heard by Boulder City?s only municipal court judge, JUDGE VICTOR MILLER. 4. I In February 2018, MR. STUBBS posted his concerns concerning MR. ?views of the First Amendment?6 and ?the con?ict of interest inherent in a City Attorney being the Stake President over Boulder City?s only judge?7 on Facebook, a social media and networking service. Speci?cally, on February 19, 2018, MR. STUBBS made the following post: Hey Boulder City! This is what your new City Attorney Steve Morris is doing! After the BCPD sends a press release warning citizens that they MUST use crosswalks during a pedestrian sting, City Attorney Steve Morris is pressing an ?Obstruction? charge and going to trial against a citizen, speci?cally charging him with ?walking back and forth in a crosswalk being used for the enforcement activity.? My client was protesting what he saw as an unfair crosswalk sting, walked at a normal pace across the crosswalk in protest 3 times, and his protest took a total of 56 seconds. I So much for the 1St Amendment. . .City attorney Steve Morris doesn?t care.8 5. MR. Facebook post came to the attention of JUDGE MILLER in hearing on or about February 22, 2018. According to MR. STUBBS, JUDGE MILLER ?issued a broad gag order from the bench, restricting Mr. Stubbs, John Hunt, anyone in the City Attorney?s Of?ce, and anyone in the Boulder City Police Department, from speaking publicly about the case or criticizing 4See Exhibit A-l attached to Response to Petition for Writ of Mandamus. 5MR. MORRIS has since been appointed City Attomey of Boulder City. 6868 Petition for Writ of Mandamus, p. 8. 71_d, MR. MORRIS is alleged to be the President of the Church of Latter Day Saints? (LDS) Stake, an administrative unit encompasses multiple congregations or wards, of which Boulder City is a part. According to MR. STUBBS, JUDGE MILLER is a member of a ward located in MR. Stake. From an ecclesiastical standpoint, MR. MORRIS has ?very signi?cant authority? M, p. 7) and an LDS ?faithful member? would feel obligated to comply with the Stake President's wishes or directives. ?More importantly, it is the culture and common belief within the LDS Church membership that criticizing your stake president or going against him in any way is a rebellion against God." Li. 35:19 also see Exhibit A-4 attached to Resrronse to Petition for Writ of Mandamus. SUSAN H. JOHNSON DISTRICT .1 UDGE DEPARTMENT XXII an attorney that is in the case in any way.?9 Further, a direct result of Judge Miller?s broad gag order, Mr. Stubbs was unable to participate in the political process in the 6 days preceding the City Council?s decision to permanently appoint Steve Morris as City Attorney.?10 6. On February 27, 2018, ?at just an hour and a half prior to the City Council meeting to discuss Steve Morris?s possible permanent appointment as City Attorney,?11 JUDGE MILLER amended and limited the scope of his previous decision and ordered ?all counsel are prohibited from engaging in extrajudicial communications that in any way disparage or otherwise comment on opposing counsel relative to this case.?12 7. As noted above, MR. STUBBS now petitions this Court for mandamus ?to restore his. Constitutional Right of Free Speech that has been unlawfully denied him by Victor Miller through unconstitutional prior restraint on speech and publication.?13 JUDGE MILLER admits he issued the Order prohibiting the lawyers from disparaging each other, speci?cally as set forth in Paragraph 6 above. He has responded, arguing (1) the activity restrained poses a serious or imminent threat to the administration of justice, (2) the order is narrowly tailored, and (3) no lesser restrictive alternatives are available. JUDGE MILLER also urges this Court to sanction MR. STUBBS as he has since made additional Facebook posts, as well as a YouTube video, disparaging MR. MORRIS, which is in violation of the February 27, 2018 Order. CONCLUSIONS OF LAW 1. A writ of mandamus is an extraordinary remedy and is available when the petitioner has no ?plain, Speedy and adequate remedy in the ordinary course of law.? See NRS 34.170 and 34.330; also see American Home Assurance Co. v. District Court, 122 Nev. 1229, 1234, 147 P.3d 9 10See Petition for Writ of Mandamus, p. 9. I 1 L4, 12See Exhibit 1 attached to Petition for Writ of Mandamus, p. 5; also see Exhibit A-S attached to Response to Petition for Writ of Mandamus, p. 5. 13See Petition for Writ of Mandamus, p. 2. scooqmmanr?a OO-JON SUSAN H. JOHNSON DISTRICT JUDGE DEPARTMENT XXII 1120, 1 124 (2006). A writ of mandamus is appropriate ??to compel the performance of an act which the law requires as a duty resulting from an of?ce or where discretion has been manifestly abused or exercised arbitrarily or capriciously.? Stephens Media. LLC v. District Court, 125 Nev. 849, 857, 221 P3 1240 (2009), quoting Hidalgo v. District Court, 124 Nev. 330, 334, 184 P.3d 369, 372 (2008), in turn, quoting Redeker v. District Court, 122 Nev. 164, 167, 127 P.3d 520, 522 (2006). 2. In American Home Assurance Co., 122 Nev. at 1234, 147 P.3d at 1124, the Nevada Supreme Court held there is ?no other adequate means [besides the ?ling of an extraordinary writ] by which to challenge the district court?s refusal to allow [a petitioner] to intervene.? The reason being is a denial of an application to intervene is not an appealable order. Aetna Life Casualty v. Ro_wa_n, 107 Nev. 362, 363, 812 P.2d 350, 350-351 (1991). Similarly, JUDGE Order Re: Extra Judicial Communications ?led February 27, 2018, prohibiting the lawyers, including MR. STUBBS, ?from engaging in extrajudicial communications that in any way disparage or otherwise comment on opposing counsel relative to this case? is not appealable', MR. STUBBS, therefore, must seek reprieve from the municipal court?s order via a petition for extraordinary relief. 3. Notwithstanding the aforementioned, this State?s high court has stated ??where an important issue of law needs clari?cation and public policy is served by this court?s invocation of its original jurisdiction, our consideration of a petition for extraordinary relief may be justi?ed.? Mineral Countv v. State Department of Conservation, 117 Nev. 235, 243, 20 P.3d 800, 805 (2001), quoting Business Computer Rentals v. State Treasurer, 114 Nev. 63, 67, 953 P.2d 13, 15 (1998). In this Court?s view, MR. petition implicates signi?cant policy concerns, most notably, the balancing of a lawyer?s freedom of speech against the state?s interest in fair judicial determinations. This Court, therefore, exercises its discretion to consider the merits of MR. petition. 4. ?It is a prized American privilege to speak one?s mind, although not always with perfect good taste, on all public institutions.? New York Times Co. v. Sullivan, 376 U.S. 254, 269, HO SUSAN H. JOHNSON DISTRICT JUDGE DEPARTMENT XXII 84 710, 11 L.Ed.2d 686 (1964). However, at the same time, ?a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.? Gannett Co. v. DePasguale, 443 U.S. 368, 378, 99 2898, 61 L.Ed.2d 608 (1978). In this regard, the United States Supreme Court ?has held that the Constitution [does] not allow absolute freedom of expression [or] a freedom unrestricted by the duty to respect others needs ful?llment of which makes for the dignity and security of man.? Pcnnekamp v. Florida, 328 U.S. 331, 351, 66 1029, 90 1295 (1946) (Frankfurter, J. concurring), citing Schenck v. United States, 249 U.S. 47, 39 247, 63 470 (1919). Justice Oliver Wendell Holmes, Jr.?s famous ??clear and present danger? test is the penultimate embodiment in First Amendment law of the principal that freedom of speech is critically important, but that ?its exercise must be compatible with the preservation of other freedoms essentially to a democracy and guaranteed by our Constitution.? United States v. Scarfo, 263 F.3d 80, 90-91 (3rd Cir. 2001), quoting Pennekamp, 328 U.S. at 353, 66 1029 (Frankfurter, J. concuning). Suf?ce it to say, to have full force and effect, the First Amendment may not be truncated just because of appealing circumstances; the regulation of speech- connected activities must be carefully restricted. Tinker v. Des Moines School District, 393 U.S. 503, 513, 89 733, 21 L.Ed.2d 731 (1968). 5. The United States Supreme Court has provided guidance on balancing competing rights in the First Amendment context. As applicable here, and in Gentile V. State Bar of Nevada, 501 U.S. 1030, 111 2720, 115 L.Ed.2d 888 (1991), the Court examined the competing interests between lawyers in a pending case wishing to speak to the media about that case and a district court attempting fairly to adjudicate that action. Here, this Court faces a similar tension between a lawyer?s right to speak in social media about his adversary and a pending case, and the municipal court?s constitutional duty to try a case fairly without the negative impact of unfavorable pretrial publicity. SUSAN l-l. JOHNSON DISTRICT JUDGE DEPARTMENT 6. An order like the one issued against MR. STUBBS is a restraint on speech that impacts rights under the First Amendment. As a rule, ?the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard that that established for regulation of the press.? gentile, 501 U.S. at 1074, 111 2720, 115 L.Ed.2d 888. That is, a lawyer?s right to free Speech in a pending case may be circumscribed in the courtroom and is limited outside the courthouse as well. See Gentile, 501 U.S. at 1073, 111 2720, 115 L.Ed.2d 888. A lawyer admitted to the bar of a court must expect the disciplinary limitations of his or her profession. In other words, lawyers should not be surprised when they learn their chosen professional status restricts their conduct and speech at times. 7. held the ?substantial likelihood of material prejudice? standard is constitutionally permissible to balance the lawyer?s interest in free speech against the state?s interest in fair judicial determinations. Extrajudicial statements by lawyers pose a threat to a pending proceeding?s fairness because attorneys have access to information through discovery and client communication, and as their statements are likely to be received as especially authoritative. m, 263 F.3d at 93. Accordingly, this Court examines the record to determine whether JUDGE order prevented a substantial likelihood of material prejudice to the judicial proceeding, as any limitation on the lawyers? speech must be narrow and necessary, carefully aimed at comments likely to in?uence the trial or judicial determination. See Gentile, 501 U.S. at 1075, 111 2720, 115 L.Ed.2d 888. 8. The evils against which a ?gag? order may appropriately apply are those generally associated with the risk of prejudice to the jury pool. r1 However, there are other forms of prejudice to the actual outcome of a trial. For example, preventing a carnival atmosphere in a high pro?le case is also a legitimate reason to gag an attorney. See United States Brown, 218 F.3d 415, 429 (5th Cir. 2000). 1 9. Here, there is no prejudice to a jury pool, because, as the municipal court is one of 2 limited jurisdiction, it does not conduct trials by jury, and no jurors will be impaneled in the case 3 lodged against MR. client. Further, the ?ve misdemeanor charges pending against MR. 4 HUNT, which consist mostly of traf?c violations, could hardly be classi?ed as highly pro?le or 5 even interesting to Boulder City?s residents. To put it bluntly, this Court concludes MR. STUBBS has not, and frankly, cannot create a ?carnival atmosphere? by making posts about the case and his 8 adversary on his Facebook page. 9 10. While the Order, p. 4, indicates judge?s concern of the Facebook posting ?disrupting 10 a ?tribunal? or ?prejudicing an adjudicative proceeding,? it appears JUDGE MILLER is more 1 concerned of the prejudice to him in deciding the legal issues. However, as noted in m, 263 12 F.3d at 94, ?there [is] no risk of prejudice to the Judge because judges are experts at placing aside 1: their personal biases and prejudices, however obtained, before making reasoned decisions. Judges 15 are experts at closing their eyes and ears to extraneous or irrelevant matters and focusing only on the 16 relevant in the proceedings before them.? Here, as in m, JUDGE MILLER did not articulate 17 any speci?c or general prejudice he would suffer and this Court sees none. At best, one might glean 18 JUDGE MILLER would be upset when or if he read the Facebook post. His concern, however, does 19 not rise to any measurable level of prejudice. perturbed judge is not necessarily a prejudiced judge. Mfg, 263 F.3d at 94-95. In sum, there is no identi?able prejudice or risk of prejudice, 22 and thus, in this Court?s view, JUDGE Order was erroneous. 23 11. Notwithstanding the aforementioned, this Court is concerned concerning the Order?s 24 breadth. Indeed, as couched, the Order is so broad both MR. STUBBS and MR. MORRIS could 25 violate the mandate if they disparage their adversary even in a private conversation with their spouses or friends within the sanctity of their homes. In other words, this Order is not care?illy g; g: 28 tailored or narrowed to meet JUDGE concerns. 3% a a 8 SUSAN H. JOHNSON DISTRICT JUDGE DEPARTMENT XXII Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, ADJUDGED AND DECREED Petitioner STEPHEN P. Petition for Writ of Mandamus ?led March 2, 2018 is granted, and the Order of the Boulder City Municipal Court Judge is reversed. DATED this 16th day of April 2013. . pgtSAN JOHNSOZ JUDGE CERTIFICATE RVICE I hereby certify, on the 16th day of April 2018, I electronically served (E-served), placed within the attorneys? folders located on the ?rst ?oor of the Regional Justice Center, or mailed a true and correct copy of the foregoing ORDER GRANTING PETITION FOR WRIT OF MANDAMU to the following party and counsel, and that ?rst-class postage was fully prepaid thereon: STEPHEN P. STUBBS, ESQ. 626 South Third Street Las Vegas, Nevada 89101 Stenhen@stephenpstubbs.com CRAIG R. ANDERSON, ESQ. JACKIE V. NICHOLS, ESQ. MARQUIS AURBACH COFFING 10001 Park Run Drive Las Vegas, Nevada 89145 canderson@maclaw.com inichols@maclaw.com 03W 6M5 Laura Banks, Judicial Executive Assistant