author: By the Court, PARRAGUIRRE, J.:

text:
    CITY OF RENO, Appellant, v. Jody YTURBIDE, Respondent.
    No. 73971
    Supreme Court of Nevada.
    FILED MAY 02, 2019
    McDonald Carano LLP and Timothy E. Rowe and Lisa M. Wiltshire Alstead, Reno, for Appellant.
    Hutchison & Steffen, LLC, and Jason D. Guinasso, Reno, for Respondent.
    Kemp & Kemp and James P. Kemp, Las Vegas; The Law Firm of Herb Santos, Jr., and Herb J. Santos, Jr., Reno, for Amicus Curiae Nevada Justice Association.
    BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.
   By the Court, PARRAGUIRRE, J.:

This workers' compensation matter raises an issue pertaining to an injured employee's entitlement to a lump-sum payment for a permanent partial disability (PPD) award. Under NRS 616C.495 and NAC 616C.498, an injured employee may elect to receive a lump-sum payment for a PPD award. However, if the employee's PPD rating exceeds a 25-percent whole person impairment (WPI), the employee may only elect to receive a lump-sum payment for up to 25 percent of the rating, and for anything exceeding that 25 percent, the employee must receive payments in installments. This appeal requires us to decide whether a workers' compensation insurer can reduce the 25-percent lump-sum-payment limit for an employee's PPD award when that employee has already received a lump-sum payment for a previous PPD award. We conclude that there is no legal basis to justify such a reduction, and we are unwilling to read any such justification into Nevada's statutory workers' compensation scheme when the statutory scheme is otherwise silent on the issue. Accordingly, the appeals officer correctly rejected appellant's position, and we affirm the district court's denial of appellant's petition for judicial review.

FACTS AND PROCEDURAL HISTORY

Respondent Jody Yturbide worked as a public safety dispatcher for appellant City of Reno (the City), during which time she received three separate PPD awards. As a result of a 2008 industrial injury to her wrist, Yturbide received a 5-percent WPI rating and elected to obtain a lump-sum PPD payment. In 2011, Yturbide suffered another industrial injury, this time to her elbow, and received a 2-percent WPI rating, for which she elected to obtain another lump-sum PPD payment. Finally, in 2014, Yturbide suffered an industrial injury to her back, for which she received a 33-percent WPI rating.

With respect to Yturbide's third PPD payment, the City disputed the extent to which Yturbide was entitled to a third lump-sum payment. Relying on NRS 616C.495(1)(d) (2007) and NAC 616C.498 (1996), the City offered Yturbide an 18-percent lump-sum payment, based on the City's belief that the statute and regulation permitted the City to deduct Yturbide's previous two PPD lump-sum payments. Specifically, under the versions of the statute and regulation in effect at the time of Yturbide's injury to her back, NRS 616C.495(1)(d) provided that "[a]ny claimant injured on or after July 1, 1995, may elect to receive his or her compensation in a lump sum in accordance with regulations adopted by the Administrator [of the Division of Industrial Relations of the Department of Business and Industry]." NRS 616C.495(l)(d) (2007). In turn, the Administrator promulgated NAC 616C.498, which provided that

[a]n employee injured on or after July 1, 1995, who incurs a permanent partial disability that ... [e]xceeds 25 percent may elect to receive his compensation in a lump sum equal to the present value of an award for a disability of 25 percent. If the injured employee elects to receive compensation in a lump sum pursuant to this subsection, the insurer shall pay in installments to the injured employee that portion of the injured employee's disability in excess of 25 percent.

NAC 616C.498(2) (1996) (emphases added).

According to the City, because NRS 616G.495(1)(d) and NAC 616C.498 provided a 25-percent lump-sum-payment limit, and because Yturbide had already obtained two previous lump-sum PPD payments totaling 7-percent WPI, the City was permitted to subtract Yturbide's previous lump-sum PPD payments from the 25-percent limit. Thus, according to the City, Yturbide was entitled only to an 18-percent lump-sum payment for her back injury, with the remaining 15 percent to be paid in installments.

Yturbide appealed this determination concerning her third PPD award by requesting a hearing before the Department of Administration Hearings Division. Following a hearing, the hearing officer found that, pursuant to NAC 616C.498, the City had erred in its 18-percent lump-sum calculation, and further found that Yturbide was entitled to a 25-percent lump-sum payment, with the remaining 8 percent to be paid in installments. The City then appealed the hearing officer's decision and requested a hearing before the Department of Administration Appeals Office. An appeals officer affirmed the hearing officer's decision, concluding, among other things, that NAC 616C.498 did not support the City's position that it was entitled to reduce Yturbide's lump-sum payment for her third PPD award based on Yturbide having already received lump-sum payments for previous PPD awards. The City then petitioned the district court for judicial review of the appeals officer's decision. The district court affirmed the appeals officer's decision, thereby denying the City's petition. This appeal followed.

DISCUSSION

On appeal from a district court order denying a petition for judicial review, this court reviews an appeals officer's decision in the same manner that the district court reviews the decision.

Vredenburg v.Sedgwick CMS , 124 Nev. 553, 557, 188 P.3d 1084, 1087 (2008). Here, the sole issue pertains to the construction of NAC 616C.498, which is an issue of law that this court reviews de novo. See Maxwell v. State Indus . Ins. Sys., 109 Nev. 327, 329, 849 P.2d 267, 269 (1993) ("The construction of a statute is a question of law, and independent appellate review of an administrative ruling, rather than a more deferential standard of review, is appropriate."); see also Silver State Elec. Supply Co. v. State, Dep't of Taxation , 123 Nev. 80, 85, 157 P.3d 710, 713 (2007) ("Statutory construction rules also apply to administrative regulations."). "Where the language of the statute is plain and unambiguous ..., a court should not add to or alter the language to accomplish a purpose not on the face of the statute or apparent from permissible extrinsic aids such as legislative history or committee reports." See Maxwell , 109 Nev. at 330, 849 P.2d at 269 (internal quotation marks omitted).

Having considered the City's arguments, we conclude that the appeals officer correctly determined that NAC 616C.498 does not permit a workers' compensation insurer to use a previous PPD award that was paid in a lump sum to reduce the 25-percent lump-sum-payment limit when the employee suffers a subsequent industrial injury and obtains a subsequent PPD award. The City contends that NAC 616C.498 permits an insurer to deduct previous PPD awards when those awards were paid in a lump sum because NAC 616C.498 does not prohibit an insurer from doing so, but in our view, NAC 616C.498 's silence on the issue means that the regulation is not pertinent to the issue whatsoever. See Maxwell , 109 Nev. at 330, 849 P.2d at 269. If anything, NAC 616C.498 's references to "a permanent partial disability that ... [e]xceeds 25 percent" and "that portion of the injured employee's disability in excess of 25 percent" (emphases added) suggest that the 25-percent limit applies on a disability-by-disability basis and not as an aggregate cap for all disabilities an employee may have throughout his or her working career. See Maxwell, 109 Nev. at 330, 849 P.2d at 269.

The City alternatively contends that NRS 616C.495(1)(e) or NRS 616C.490(9) require NAC 616C.498 to be construed in a manner that would permit a workers' compensation insurer to deduct previous PPD awards when computing the amount of a lump-sum payment for a subsequent PPD award. We disagree. NRS 616C.495(1)(e) simply prohibits an employee with multiple injuries from having a combined WPI rating of above 100 percent, which is a common-sense proposition and is not the case here. Cf. Hearing on S.B. 232 Before the Senate Commerce, Labor & Energy Comm., 78th Leg. (Nev., March 13, 2015) (explaining the purpose of what would become NRS 6l6C.495(1)(e)); Hearing on S.B. 232 Before the Assembly Commerce & Labor Comm., 78th Leg. (Nev., May 6, 2015) (same). And NRS 616.490(9) merely provides that

if there is a previous disability, ... the percentage of disability for a subsequent injury must be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.

By its terms, NRS 616C.490(9) requires previous WPI ratings to be subtracted from an employee's entire WPI when arriving at the WPI rating for a subsequent injury. Had NRS 616C.490(9) been properly applied in this case, the physician that conducted Yturbide's WPI rating for her third injury should have determined her entire WPI rating and then deducted the two previous WPI ratings (i.e., 5 and 2 percent) from the total WPI rating. The statute says nothing about using lump-sum payments related to previous PPD awards as a justification for reducing the lump-sum payment an employee is otherwise entitled to for a subsequent PPD award. Nor has the City identified any legislative history to suggest that, in enacting NRS 616C.495(l)(e) or NRS 616C.490(9), it was the Legislature's roundabout intent to permit workers' compensation insurers to deduct previous PPD awards paid in a lump sum to reduce the 25-percent lump-sum-payment limit under NAC 616C.498. See Maxwell, 109 Nev. at 330, 849 P.2d at 269.

The City next contends that Eads v. State Industrial Insurance System, 109 Nev. 733, 857 P.2d 13 (1993), supports its position, but again, we disagree. In Eads , an employee sustained a work-related injury and was given a 19-percent PPD award, which the employee accepted in a lump-sum payment. 109 Nev. at 734, 857 P.2d at 14. The employee subsequently reopened his claim because the same injury required additional treatment, and he received a 16-percent PPD award over and above the original award. Id. at 734-35, 857 P.2d at 14. At the time, a since-repealed statute (NRS 616.607(1)(c)) provided that

[a]ny claimant ... who incurs a disability that exceeds 25 percent may elect to receive his compensation in a lump sum equal to the present value of an award for a disability of 25 percent. If the claimant elects to receive compensation pursuant to this paragraph, the insurer shall pay in installments to the claimant that portion of the claimant's disability in excess of 25 percent.

Eads, 109 Nev. at 735 n.1, 857 P.2d at 15 n.1.

On appeal, this court addressed whether the employee could seek the entire subsequent 16-percent PPD award in a lump-sum payment, or whether the 16-percent PPD award needed to be combined with the previous 19-percent PPD award, such that the employee could only receive an additional 6-percent lump-sum payment before reaching the statute's 25-percent limit. This court concluded that the statute's 25-percent limit unambiguously applied to "a disability " and that, consequently, "where ... an injured worker's case is reopened for further treatment and evaluation of the original disability, NRS 616,607(l)(c) applies to the combined disability allowance and limits any lump sum payments to a total of twenty-five percent." Id. at 735-36, 857 P.2d at 15.

We are not persuaded that Eads has any bearing on whether NAC 616C.498 permits a workers' compensation insurer to reduce the 25-percent limit based on a previous PPD award paid in a lump sum that an employee received for a different disability. If anything, Eads supports the proposition that NAC 616C.498 's 25-percent limit should be applied on a disability-by-disability basis. Put simply, the City has not provided this court with any statutory, regulatory, or common-law authority to support its position that previous PPD awards that were paid in a lump sum can be used to reduce NAC 616C.498 's 25-percent lump-sum limit for a subsequent PPD award related to a different disability. While we are cognizant of the City's public-policy arguments, those arguments are better directed to the Legislature, which, as of yet, has not enacted legislation pertaining to the issue presented in this case. Accordingly, the appeals officer correctly determined that Yturbide is entitled to a lump-sum payment for the first 25 percent of her most recent WPI rating and PPD award, with the remaining 8 percent to be paid in installments. We therefore affirm the district court's denial of the City's petition for judicial review.

We concur:

Pickering, J

Cadish, J.

      The City is self-insured, meaning it provides its own workers' compensation coverage, as is permitted by NRS 616B.615.

      This opinion addresses the versions of NRS 616C.495(l)(d) and NAC 616C.498 that were in effect at the time of Yturbide's third injury. See NRS 616C.425(1) ("The amount of compensation and benefits ... must be determined as of the date of the accident or injury...."). Although NRS 616C.495(l)(d) was amended in 2017 to expressly include NAC 616C.498 's language that is at issue in this case, see 2017 Nev. Stat., ch. 216, § 9, at 1167, there is no indication that the amendment was intended to accomplish anything other than to codify the provisions of the regulation. See Hearing on A.B. 458 Before the Assembly Commerce & Labor Comm., 79th Leg. (Nev., March 29, 2017); see also Hearing on A.B. 458 Before the Senate Commerce, Labor & Energy Comm., 79th Leg. (Nev., May 17, 2017). After it was codified in NRS 616C.495, NAC 616C.498 was repealed. See Legislative Counsel Bureau File No. R127-17 (effective Jan. 30, 2019).

      Subsection (1)(e) did not exist at the time of Yturbide's third injury. See 2015 Nev. Stat., ch. 240, § 3, at 1142 (enacting subsection (l)(e)). It has since been moved to subsection (1)(g). See 2017 Nev. Stat., ch. 216, § 9, at 1168.

      Although the rating physician did not actually follow NRS 616C.490(9) in this case, failure to follow the statute does not change the meaning of the statute.

      Notably, the relevant language in this statute is substantively identical to the language in NAC 616C.498.


source: Caselaw Access Project

license: Public Domain

text:
    Eric Anthony BUHL, Appellant, v. The STATE of Nevada, Respondent.
    No. 75441
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    AFFIRMED.


author: By the Court, HARDESTY, J.:

text:
    SIERRA PACIFIC INDUSTRIES, Appellant, v. Tim WILSON, P.E., in His Capacity as Nevada State Engineer; Division of Water Resources, Department of Conservation, an Agency of the State of Nevada; and IWS Basin, LLC, a Nevada Limited Liability Company, Respondents.
    No. 73933
    Supreme Court of Nevada.
    FILED MAY 02, 2019
    McDonald Carano LLP and Debbie Leonard, Reno, for Appellant.
    Aaron Ford, Attorney General, and Tori N. Sundheim, Deputy Attorney General, Carson City, for Respondents Tim Wilson as State Engineer and Division of Water Resources, Department of Conservation.
    Brownstein Hyatt Farber Schreck, LLP, and Bradley J. Herrema and Arthur A. Zorio, Reno, for Respondent IWS Basin, LLC.
    BEFORE GIBBONS, C.J., HARDESTY and PICKERING, JJ.
   By the Court, HARDESTY, J.:

Intermountain Water Supply, Ltd., holds water rights permits to transmit water to Lemmon Valley for municipal use and was granted an extension of time by the State Engineer in which to apply the water to beneficial use. Appellant Sierra Pacific Industries argues that the extension impermissibly allowed Intermountain to speculate the water, as Intermountain had no intention to put the water to beneficial use itself but was instead seeking a third-party buyer of the permits to perfect the water appropriation. We consider whether Nevada's policy mandating beneficial use of water requires application of the anti-speculation doctrine to requests for extensions of time such that a permittee who is not planning to use the water must show evidence of its formal relationship with a third party who will be using the water in its place. Based on Nevada's ongoing requirement that a permittee show reasonable diligence to apply the water to beneficial use, we conclude that the anti-speculation doctrine applies to requests for extensions of time.

Intermountain submitted an affidavit claiming the existence of an "[o]ption [a]greement" with two unidentified "worldwide engineering and construction firms" and an agreement that, as described, does not comport with the place of use specified in the permits, as evidence of its reasonable diligence to support its extension request. We adopt Colorado's ruling in Front Range Resources, LLC v. Colorado Ground Water Commission , 415 P.3d 807, 813 (Colo. 2018) -that a generic option contract does not save an applicant from the anti-speculation doctrine-and conclude that the State Engineer abused his discretion in determining, on this scant record, that Intermountain's averred option agreements satisfied the anti-speculation doctrine. Without the averred option agreements, the record does not contain sufficient detail to demonstrate reasonable diligence under NRS 533.380(3)-(4) and our decision in Desert Irrigation, Ltd. v. State , 113 Nev. 1049, 1057, 944 P.2d 835, 841 (1997). Accordingly, we reverse and remand so the State Engineer can reevaluate the extension in light of these authorities.

FACTS AND PROCEDURAL HISTORY

In 2002, the State Engineer granted respondent Intermountain Water Supply, Ltd., three water rights permits in the Dry Valley Hydrographic Basin (the Basin). The three permits were for a transmission pipeline to deliver water to Lemmon Valley, Nevada, for municipal purposes. In its application for the first permit, Intermountain estimated that the project would be completed in five years and that the water would be put to beneficial use in ten years. Over time, the State Engineer granted Intermountain five additional permits, modifying the points of diversion in the original permits, but maintaining the same place of use: Lemmon Valley.

Intermountain has since applied for and received numerous extensions pursuant to NRS 533.380 to extend the time of construction and to put the water to beneficial use. In its first application for an extension of time (filed in 2005), Intermountain stated that it had delayed the project because of issues involving endangered species on the land. Intermountain sought subsequent extensions based on economic conditions. Since 2011, Intermountain has requested extensions because it was seeking a buyer for its water rights.

Appellant Sierra Pacific Industries (SPI) owns ranching and farming operations in the Basin and the surrounding area, and seeks cancellation of Intermountain's permits so that it can acquire the water rights to expand its irrigation and agricultural development. In 2015, anticipating another request for an extension by Intermountain, SPI pre-filed an objection to Intermountain's applications, arguing, among other things, that Intermountain did not have good cause to request an extension and Intermountain was engaging in water speculation. In 2016, Intermountain filed applications for extensions of time in which it again indicated that it was seeking a buyer for its rights. At the time of these applications, Intermountain had not yet constructed the pipeline or sold its water rights.

The State Engineer granted Intermountain's 2016 applications for extensions of time, concluding that Intermountain had demonstrated good faith and reasonable diligence in perfecting the appropriation. The State Engineer relied on a sworn affidavit by Robert Marshall, one of the Intermountain pipeline managers, who stated that Intermountain had entered into option contracts with an unidentified engineering firm and a separate, also unidentified construction firm, had negotiated a contract with a public utility company to distribute water to its customers (but in Cold Springs, not Lemmon Valley), and was negotiating with home developers. Intermountain did not submit the alleged option agreements or Cold Springs utility contract, though it did submit an expense sheet and invoices, which Marshall outlined in the affidavit. Marshall attested to Intermountain having spent $3,000,000 over the life of the project and that it had incurred total expenses of $23,300.39 in the previous year "in moving the project forward" and responding "to the vexatio[us] litigation" from SPI's challenges to its permits' extensions. The State Engineer rejected SPFs claim that Intermountain was speculating the water, finding that Intermountain's sworn affidavit demonstrated that it had secured contractual agreements with firms, a public utility company, and developers, and the anti-speculation doctrine did not limit the alienability of water rights. SPI filed a petition for judicial review of the State Engineer's decision, which the district court denied. SPI now appeals that decision.

DISCUSSION

This case presents the question of how the anti-speculation doctrine affects a water permittee who obtained water rights permits for beneficial use by a third party and who seeks an extension of time under NRS 533.380 to perfect those water rights. We must decide whether the anti-speculation doctrine applies to extension requests such that the permittee must have a formal relationship with the third party who will be putting the water to beneficial use and, if so, whether Intermountain provided sufficient evidence to show that it had such a relationship to merit an extension of its water permits.

Standard of review

Whether the anti-speculation doctrine applies to extensions of time is a question of law that we review de novo. Pyramid Lake Paiute Tribe of Indians v. Ricci, 126 Nev. 521, 525, 245 P.3d 1145, 1148 (2010) (stating that this court "review[s] purely legal questions without deference to the State Engineer's ruling"). The State Engineer's ruling on a question of law is persuasive, but not entitled to deference. Id. We review the State Engineer's factual findings for an abuse of discretion and will only overturn those findings if they are not supported by substantial evidence. NRS 233B.135(3)(e), (f) ; Bacher v. Office of the State Eng'r, 122 Nev. 1110, 1121, 146 P.3d 793, 800 (Nev. 2006). "[S]ubstantial evidence [is] that which a reasonable mind might accept as adequate to support a conclusion." Id. (internal citation and quotation marks omitted); see also NRS 233B.135(4).

Legal background and statutory requirements for an extension of time

In Nevada, "[t]he water of all sources of water supply within the boundaries of the State ... belongs to the public." NRS 533.025. "[E]ven those holding certificated, vested, or perfected water rights do not own or acquire title to water. They merely enjoy the right to beneficial use." Desert Irrigation, 113 Nev. at 1059, 944 P.2d at 842. We have explained that "[t]he concept of beneficial use is singularly the most important public policy underlying the water laws of Nevada and many of the western states." Id. Accordingly, pursuant to NRS 533.395(1), the holder of a permit to appropriate water must proceed "in good faith and with reasonable diligence to perfect the appropriation" or face cancellation of the permit by the State Engineer. Id.

If the permittee is unable to complete construction of the work or put the water to beneficial use within the specified time, the permittee may request an extension of time pursuant to NRS 533.380(3). Upon "good cause shown," the State Engineer may "grant any number of extensions of time" to allow the permittee to complete construction work or apply the water to beneficial use. NRS 533.380(3). To obtain an extension, the permittee must submit "proof and evidence [that shows he or she] is proceeding in good faith and with reasonable diligence to perfect the application." NRS 533.380(3)(b) (2013); 2013 Nev. Stat., ch. 147, § 2.4, at 502. "[T]he measure of reasonable diligence is the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all the facts and circumstances." NRS 533.380(6). In addition, when the permit provides water rights for municipal use, as is the case here, the State Engineer must consider additional factors set forth in NRS 533.380(4) before granting the application for an extension of time. A permit holder's failure to present this evidence "is prima facie evidence that the [permit] holder is not proceeding in good faith and with reasonable diligence." NRS 533.380(3).

Background on the anti-speculation doctrine

The anti-speculation doctrine "precludes speculative water right acquisitions without a showing of beneficial use." Bacher , 122 Nev. at 1119, 146 P.3d at 799. In Bacher, we addressed the situation where a permittee applicant applies for a permit for an interbasin water transfer under NRS 533.370 but does not intend to put the appropriated water to beneficial use itself. Id. We explained that a permittee is statutorily required to show that the water will be put to beneficial use and must justify "the need to import the water from another basin." NRS 533.370(6). We also explained that the permittee could satisfy these requirements by demonstrating a third party's need and intent to put the water to beneficial use in its place. Bacher, 122 Nev. at 1116-19, 146 P.3d at 797-99. However, to ensure that the permittee is not merely speculating on water, we adopted Colorado's requirement that the permittee show "an agency or contractual relationship with the party intending to put the water to beneficial use" and specify the intended beneficial use of the appropriation. Id. at 1119-20, 146 P.3d at 799 (citing Three Bells Ranch Assocs. v. Cache La Poudre Water Users Ass'n, 758 P.2d 164, 173 n.11 (Colo. 1988) ). Where "the purported appropriator does not intend to put water to use for its own benefit and has no contractual or agency relationship with one who does," the appropriator cannot demonstrate beneficial use and is therefore barred by the anti-speculation doctrine from maintaining the water permits. Id. at 1119, 146 P.3d at 799 (internal quotation marks omitted). In this manner, the anti-speculation doctrine limits "an entity's ability to demonstrate beneficial use when it [does] not have definite plans to put water to beneficial use or a contractual relationship with an entity that ha[s] such plans." Adaven Mgmt., Inc. v. Mountain Falls Acquisition Corp., 124 Nev. 770, 777, 191 P.3d 1189, 1194 (2008).

Though Bacher involved an original application for a permit under NRS 533.370, whereas this matter involves an application for an extension of time on an existing permit under NRS 533.380, the same policies for applying the anti-speculation doctrine to an original application for a permit are also present in an application for an extension of time. Both applications require the applicant to show efforts to "apply the water to the intended beneficial use with reasonable diligence." Bacher, 122 Nev. at 1119-20, 146 P.3d at 799 ; compare NRS 533.370, with NRS 533.380. As we explained in Bacher , an applicant who only speculates on the use of water cannot satisfy "the beneficial use requirement that is so fundamental to our State's water law jurisprudence." 122 Nev. at 1119, 146 P.3d at 799. Thus, the concerns underlying the anti-speculation doctrine are not limited to the original permit application process; rather, a permittee has an ongoing duty to put the water to beneficial use with reasonable diligence throughout the water permitting process. See NES 533.380(3); NES 533.395(1). And it is clear from the language of NES 533.380(3) as well as its legislative history that the requirement that permittees show reasonable diligence in appropriating water rights for permit extensions is to protect against speculation. See Hearing on A.B. 624 Before the Assembly Government Affairs Comm., 67th Leg. (Nev., May 27, 1993); id., Exhibit C.

As such, we conclude that the formal-relationship requirement adopted in Bacher also applies when a permittee requests an extension of time under NES 533.380. Thus, when a permittee's rights are based on water appropriation by a third party, the permittee must show a formal relationship with the third party in order to satisfy NES 533.380's ongoing requirement that the permittee demonstrate reasonable diligence to apply the water to beneficial use. See Bacher, 122 Nev. at 1120, 146 P.3d at 799. And because NES 533.380(3) specifically requires a permittee to provide evidence of its efforts to put the water to beneficial use with each request for an extension of time, we conclude that the anti-speculation doctrine applies to each extension request. In applying for an extension of time, the permittee must submit proof and evidence of the third-party relationship. Desert Irrigation, 113 Nev. at 1057, 944 P.2d at 841 (stating that "[a] mere statement of intent to put water to beneficial use, uncorroborated with any actual evidence, after nearly twenty years of nonuse is insufficient to justify a sixteenth ... extension"). Thus, under NRS 533.380(3)(b), Intermountain was required to present evidence of these contracts and negotiations in the present extension request.

The anti-speculation doctrine requires that a permittee show actual evidence of its formal relationship with a third party who will perfect the water right

With this framework in mind, we now consider whether the State Engineer properly applied the anti-speculation doctrine in this case. The State Engineer concluded that the formal-relationship requirement we adopted in Bacher did not apply to Intermountain's initial permit request because the requirement was not in place when the State Engineer issued the initial permits (between 2002 and 2006). For the instant extension request, the State Engineer seemed to conclude that the anti-speculation doctrine applied and that Intermountain's affidavit attesting that it had "entered into an [o]ption [a]greement with two world-wide engineering and construction firms, experienced in water systems development" was sufficient evidence of Intermountain's reasonable diligence to perfect the water rights. We are not convinced that the State Engineer properly applied the anti-speculation doctrine to the option agreements. The Colorado Supreme Court's opinion in Front Range, 415 P.3d at 813, is instructive on this point. The Front Range court held that an option contract, while specifically naming an end-user, was too abstract to overcome the anti-speculation doctrine because the end-user could elect to purchase the water rights in full, in part, or not at all, which made the option contract too speculative. See id. We agree and adopt the reasoning of the Front Range court.

Intermountain did not provide substantial evidence of its option agreements with third parties to allay the concerns over its speculative use. The affidavit did not identify the firms it had "entered into an [o]ption [a]greement with," other than by stating that one was in Chicago, Illinois, and the other in Tel Aviv, Israel. It also did not state how these agreements related to the Intermountain pipeline project, and there is no evidence that Intermountain obtained an end-user. It is not possible to ascertain a formal contractual relationship from the mere mention in an affidavit of an option contract, especially when the third parties are unidentified and there is no description of how the third parties will perfect the appropriation. See id. The State Engineer's evident conclusion that Intermountain was not violating the anti-speculation doctrine because its principal claimed in an affidavit that Intermountain had entered into unproduced option agreements was an error under Front Range, because a generic option contract, without more, does not avoid the anti-speculation doctrine. See Bacher, 122 Nev. at 1120, 146 P.3d at 799 (requiring an agency or contractual relationship with the party committed to put the water to beneficial use); see also Front Range, 415 P.3d at 813 (holding that a generic option agreement was too speculative to overcome the anti-speculation doctrine); Desert Irrigation, 113 Nev. at 1057, 944 P.2d at 841 (requiring "actual evidence" of reasonable diligence to approve an extension request).

The remainder of Intermountain's affidavit attesting to uncorroborated negotiations with third parties and a contract with a utility to use the water in Cold Springs does not allow us to affirm

Additionally, Intermountain attested that "[a]n agreement ha[d] been reached," which it was in the process of signing, with Utilities, Inc., "[a] utility company[,] to distribute Intermountain's water to its present and future customers in the Cold Springs area of Washoe County." Intermountain also stated that it "had numerous meetings" with developers of a construction project for 10,000 homes in Reno and that it expected to have "agreements in hand within three to four months." These allegations, without more, do not allow us to affirm the State Engineer's decision to grant Intermountain's extension request. Reference to negotiations with unspecified developers does not show concrete evidence of progress towards beneficial use or identify how the third parties would place the water to beneficial use in Intermountain's project area, which the permits designate as Lemmon Valley. This is particularly concerning because, in the order granting the extensions, it appears that the State Engineer impliedly allowed Intermountain to develop its project in areas beyond the designated area in the permits. We have reviewed all of the permit applications and the permits call for a place of use specifically in Lemmon Valley. We also reviewed the State Engineer's 2015 extension, which unambiguously indicates that "[t]he area to be served is Lemmon Valley."

Accordingly, we reverse and remand to the district court with instructions to remand to the State Engineer to determine whether the uncorroborated third-party agreements existed and to allow Intermountain to submit evidence of the agreements in support of its request. On remand to the State Engineer, he must also more fully explain his basis for granting extensions for use in Cold Springs rather than in Lemmon Valley, as specified in the permits.

We concur:

Gibbons, C.J.

Pickering, J.

      Richard L. Elmore, as counsel for Intermountain, filed an answering brief and participated in oral argument before this court. After briefing and oral argument, Intermountain filed a motion informing this court that it transferred all of its rights, title, and interest in the water rights at issue to IWS Basin, LLC, and requesting that IWS be substituted as a respondent in place of Intermountain, which we granted. However, because Intermountain was the original permit holder and is referred to as such in the parties' briefs, we continue to refer to Intermountain as the respondent in this opinion.

      All references are to the 2013 statutes, unless stated otherwise, as those were in effect at the time the complaint was filed and at the time the State Engineer granted the permits at issue.

      Given our disposition, we do not reach the issue of whether the rest of the State Engineer's order was supported by substantial evidence. We also decline to reach Intermountain's law-of-the-case, issue-preclusion, and waiver arguments in the first instance. See Edwards v. Emperor's Garden Rest. , 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not address issues that are not cogently argued and supported by relevant authority).


author: By the Court, SILVER, J.:

text:
    The State of Nevada, DEPARTMENT OF CORRECTIONS, Appellant, v. Brian LUDWICK, an Individual, Respondent.
    No. 73277
    Supreme Court of Nevada.
    FILED MAY 02, 2019
    Aaron D. Ford, Attorney General, and Michelle Di Silvestro Alanis, Deputy Attorney General, Carson City, for Appellant.
    Law Office of Daniel Marks and Daniel Marks and Adam Levine, Las Vegas, for Respondent.
    BEFORE HARDESTY, STIGLICH and SILVER, JJ.
   By the Court, SILVER, J.:

After appellant Nevada Department of Corrections (NDOC) terminated respondent Brian Ludwick's employment for a first-time offense, Ludwick was reinstated by a hearing officer on administrative appeal. At issue is whether the hearing officer erred in finding that NDOC's decision to terminate was improper. We hold that the hearing officer erred by relying, even if only in part, on a regulation that the State Personnel Commission (Commission) had not approved as statutorily required. The hearing officer also did not properly consider, as addressed in our recent opinion O'Keefe v. State, Department of Motor Vehicles , 134 Nev., Adv. Op. 92, 431 P.3d 350 (2018), whether Ludwick's actions constituted violations of the valid regulations NDOC charged him with violating and, if so, whether those violations warranted termination as a first-time disciplinary measure. Accordingly, we reverse the district court's denial of NDOC's petition for judicial review and remand for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Ludwick worked for NDOC as a correctional officer. During his employment, he qualified for leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 (2012), due to hypertension. In the more than two years Ludwick worked for NDOC, he had no disciplinary history.

On the day of the incident for which Ludwick was terminated, Ludwick was assigned to Unit 1 at the correctional facility. Unit 1 houses inmates returning from solitary confinement and tends to have more violent incidents than any other unit. The mandated minimum staffing for Unit 1 at the time was two officers, but three officers were assigned to Unit 1 on that day. During his shift, Ludwick attempted to contact his supervisor to inform him that he was not feeling well, but could not get ahold of him. Ludwick then left Unit 1, without prior permission, to speak to his supervisor in person. Although the parties dispute the specifics of the conversation that ensued, Ludwick ultimately left work on FMLA leave. The supervisor subsequently generated a report stating that Ludwick neglected his duty and abandoned his post without authorization when he left Unit 1.

After an internal investigation into the supervisor's report, NDOC charged Ludwick with violating NAC 284.650(1) (activity incompatible with employee's conditions of employment), NAC 284.650(3) (violating or endangering the security of the institution), NAC 284.650(7) (inexcusable neglect of duty), and NDOC's Administrative Regulation (AR) 339.05.15 (neglect of duty-leaving an assigned post while on duty without authorization of a supervisor). NDOC initially recommended a five-day suspension but ultimately decided to terminate Ludwick for consistency purposes, as other employees who had violated AR 339 were terminated.

Ludwick administratively challenged NDOC's decision and, following a hearing, the hearing officer overturned the termination. The hearing officer agreed with NDOC that "Ludwick engaged in inexcusable neglect by leaving his post without the prior permission of a supervisor." The hearing officer found that termination of employment, however, was too harsh a penalty, as Ludwick had no prior discipline and no incidents arose in Unit 1 after Ludwick left. The hearing officer also disagreed with NDOC's argument that Ludwick's leaving Unit 1 without prior approval constituted a serious security risk, as the minimum staffing requirements for the unit were still met and no one was assigned to replace Ludwick in Unit 1 after he left for the day. Finding that "some discipline" was still required because Ludwick "in fact violate[d] a very important safety and security policy by leaving his post without prior authorization from a supervisor," the hearing officer ordered that Ludwick be suspended for not more than 30 days. The district court denied NDOC's subsequent petition for judicial review and this appeal followed.

DISCUSSION

"When reviewing a district court's denial of a petition for judicial review of an agency decision, this court engages in the same analysis as the district court." Taylor v. State, Dep't of Health & Human Servs., 129 Nev. 928, 930, 314 P.3d 949, 951 (2013) (quoting Rio All Suite Hotel & Casino v. Phillips , 126 Nev. 346, 349, 240 P.3d 2, 4 (2010) ). Thus, pursuant to Nevada's Administrative Procedure Act (NAPA), we review the hearing officer's decision to determine whether it is clearly erroneous, arbitrary or capricious, or affected by an error of law. NRS 233B. 135(3). In doing so, we review questions of law de novo but "defer[ ] to [a hearing officer's] interpretation of its governing statutes or regulations if the interpretation is within the language of the statute." Taylor , 129 Nev. at 930, 314 P.3d at 951 (quoting Dutchess Bus. Servs., Inc. v. Nev. State Bd. of Pharmacy, 124 Nev. 701, 709, 191 P.3d 1159, 1165 (2008) ).

The hearing officer's review of NDOC's decision to terminate

Initially, the parties present arguments regarding the deference the hearing officer owed to NDOC's decisions. We recently addressed that issue in O'Keefe v. State, Department of Motor Vehicles , 134 Nev., Adv. Op. 92, 431 P.3d 350 (2018), and concluded that the hearing officer conducts a de novo review of "whether the employee in fact committed the charged violation." Id. at 355. And, when reviewing an agency's decision that termination will serve the good of the public service, the hearing officer is to employ a deferential standard. See id. at 355-56 (overruling Dredge v. State, Department of Prisons, 105 Nev. 39, 769 P.2d 56 (1989), State, Department of Prisons v. Jackson, 111 Nev. 770, 895 P.2d 1296 (1995), and their progeny to the extent they "suggest that the hearing officer decides de novo whether the employee's termination serves the good of the public service" (internal quotation marks omitted)). O'Keefe did not directly address, however, whether the hearing officer owes deference to an employer's decision that a violation is so serious that it warrants termination for a first-time offense when the agency does not have a published regulation to that effect in place. See id. at 356 (providing that when a published regulation prescribes termination for a first-time offense, "then that violation is necessarily 'serious' as a matter of law").

Examining O'Keefe's reasoning for its limited overruling of Dredge and Jackson demonstrates that, even when there is no published regulation in place, the hearing officer should give deference to an employer's decision that a violation is so serious it warrants termination for a first-time offense. O'Keefe explained that while those previous cases emphasized the need for deference to the employer when security concerns were implicated, the cases "did not create a broad rule that deference is generally not owed unless there are security concerns." Id. O'Keefe then recognized that a hearing officer generally owes deference "as to whether the agency's termination decision was reasonable and with just cause." Id. (citing NRS 284.390(1), (7) ). Because the determination of whether a violation is so serious that it warrants termination for a first-time offense is part of the hearing officer's consideration of whether the agency's decision to terminate was reasonable and with just cause, O'Keefe mandates that the hearing officer defer to the employer's decision. See id.

The hearing officer erred by relying on an invalid regulation in reviewing the termination decision

A hearing officer's review of an agency's decision to terminate an employee as a first-time disciplinary measure requires a three-step process. Id. at 356 (citing NRS 284.390(1) ). "First, the hearing officer reviews de novo whether the employee in fact committed the alleged violation." Id. (citing NAC 284.798 ). The hearing officer next "determines whether that violation is a 'serious violation[ ] of law or regulations' such that the 'severe measure[ ]' of termination is available as a first-time disciplinary action." Id. (alterations in original) (quoting NRS 284.383(1) ). "If the agency's published regulations prescribe termination as an appropriate level of discipline for a first-time offense, then that violation is necessarily 'serious' as a matter of law." Id. (quoting NRS 284.383(1) and citing NAC 284.646(1) ). A violation is also "serious" as a matter of law if the agency has a policy that prescribes termination as an appropriate level of discipline for a first-time offense. See id. ; see also NAC 284.646(1)(a). Where no such regulation or policy is in place, the hearing officer applies a deferential standard of review to an agency's determination that "[t]he seriousness of the offense or condition warrants such dismissal." NAC 284.646(1)(b) ; see O'Keefe , 134 Nev., Adv. Op. 92, 431 P.3d at 356. "Third and last, the hearing officer applies a deferential standard of review to the agency's determination that termination will serve 'the good of the public service.' " O'Keefe, 134 Nev., Adv. Op. 92, 431 P.3d at 356 (quoting NRS 284.385(1)(a) ).

All of the violations listed in Ludwick's specificity of charges were based on the fact that he left Unit 1 without prior permission from his supervisor. Ludwick does not dispute that he left the unit without permission except to argue that he had implied permission to leave under the FMLA. We disagree, as 29 C.F.R. § 825,303(c) (2018) provides that "[w]hen the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances," and Ludwick did not demonstrate any unusual circumstances in this case. The question then becomes whether Ludwick leaving the unit without prior permission constitutes a violation of the NAC provisions and AR 339 as listed in the specificity of charges.

Addressing AR 339.05.15 first, the hearing officer determined that this regulation had to be approved by the Commission to be of any disciplinary effect. On appeal, NDOC asserts that the plain language in another statute, NRS 209.111, allows the Board of State Prison Commissioners (Board) to adopt administrative regulations regarding the labor of employees without the approval of the Commission and that AR 339 is therefore valid because it was approved by the Board. We agree with Ludwick and the hearing officer, however, that the fact that the Commission never approved AR 339 makes it invalid and of no legal effect for purposes of employee discipline.

NRS 284.383(1) provides that the Commission must adopt, by regulation, "a system for administering disciplinary measures against a state employee." That system is set forth in NAC 284.638 - .6563. The Commission also adopted NAC 284.742(1), which directs agencies to identify prohibited activities and possible violations and penalties and explain the discipline process for classified employees. Under that regulation, the agencies' policy must receive approval from the Commission:

Each appointing authority shall determine, subject to the approval of the Commission, those specific activities which, for employees under its jurisdiction, are prohibited as inconsistent, incompatible or in conflict with their duties as employees. The appointing authority shall identify those activities in the policy established by the appointing authority pursuant to NRS 284.383.

(Emphasis added.) See also NRS 284.383(3) ("An appointing authority shall provide each permanent classified employee of the appointing authority with a copy of a policy approved by the Commission that explains prohibited acts, possible violations and penalties and a fair and equitable process for taking disciplinary action against such an employee." (emphasis added)). The foregoing law clearly demonstrates that the Commission's approval was required for any administrative regulation regarding an employee's discipline to have any force and effect.

We agree with the hearing officer that NDOC provided no evidence showing that the Commission approved AR 339. NDOC's argument that NRS 209.111 allows the Board to bypass the Commission's approval fails. Although that statute states that the Board "has full control of all ... labor" of the NDOC, it is referring to inmate labor, rather than the governance of NDOC employees. See State v. Hobart , 13 Nev. 419, 420 (1878) (addressing the precursor to NRS 209.111, which specifically referred to "prison labor"); Hearing on S.B . 116 Before the Sen. Finance Comm., 59th Leg. (Nev., Feb. 28, 1977) (statement of Charles L. Wolff, Warden, Nevada State Prison) (explaining that the bill was intended to provide more effective educational and vocational training to inmates "so they are prepared to be placed effectively back into the community and earn a livelihood" without any mention of employee discipline). And, because the regulation was never approved by the Commission, the hearing officer correctly determined that it was invalid and could not form a basis for terminating Ludwick.

Despite the hearing officer's correct determination that AR 339 was invalid, the officer still relied on the regulation in order to understand "the expectations and duties as it relates to correctional officers being at their assigned post" and to determine whether Ludwick's actions constituted an inexcusable neglect of duty under NAC 284.650(7) and justified termination for the first offense. This is a clear error of law warranting remand-because the regulation is invalid, the hearing officer should not have relied on it for any purpose related to the disciplinary charges in this case. See NRS 233B.135(3)(d). On remand, the hearing officer must address whether Ludwick's actions of leaving his post without prior permission constitutes violations of the valid NAC provisions listed in his specificity of charges without any reliance on AR 339. And, if the hearing officer finds that Ludwick violated the relevant NAC provisions, the officer must then apply the remaining two steps outlined in O'Keefe to determine whether those violations warranted terminating Ludwick as a first-time disciplinary action. See 134 Nev., Adv. Op. 92, 431 P.3d at 356.

CONCLUSION

Because the hearing officer committed legal error in relying on an invalid regulation to set aside Ludwick's termination, we reverse the district court's denial of NDOC's petition for judicial review. We therefore remand this matter to the district court so that it may grant NDOC's petition and remand the case to the hearing officer for further proceedings consistent with this opinion.

We concur:

Hardesty, J.

Stiglich, J.

      We recognize that the parties, the hearing officer, and the district court did not have the benefit of the O'Keefe opinion when addressing these issues.

      The parties agree that the relevant version of AR 339.05.15 provided that a corrections officer leaving an assigned post without permission constituted inexcusable neglect of duty.

      NDOC also contends that it is exempted from the NAPA's statutes regarding the adoption of regulations. While the NAPA exempts NDOC from certain of its procedures, see NRS 233B.039(1)(b), NDOC is not exempt from the procedures regarding the adoption of regulations governing state personnel. See NRS 284.013 (exempting only certain state entities from NRS Chapter 284).


text:
    Diondrea Lamar PARKER, Appellant, v. The STATE of Nevada, Respondent.
    No. 75473
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    AFFIRMED.


text:
    Joseph Kelly ALDUENDA, Appellant, v. The STATE of Nevada, Respondent.
    No. 74487
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    AFFIRMED.


text:
    Gregory Dellinger URMSTON, Appellant, v. The STATE of Nevada, Respondent.
    Gregory Dellinger Urmston, Appellant, v. The State of Nevada, Respondent.
    Gregory Dellinger Urmston, Appellant, v. The State of Nevada, Respondent.
    No. 74619 No. 74620 No. 74621
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    AFFIRMED.


text:
    Matthew WASHINGTON, Appellant, v. The STATE of Nevada, Respondent.
    No. 78597
    Supreme Court of Nevada.
    FILED MAY 06, 2019
    DISMISSED.


text:
    SATICOY BAY LLC SERIES 2110 CLUB MEADOWS, Appellant, v. JPMORGAN CHASE BANK, N.A., Respondent.
    No. 75251
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    AFFIRMED.


text:
    In the MATTER OF Resignation of John J. GRAVES, Jr., Bar No. 1698.
    No. 78649
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    Granted.


text:
    In the MATTER OF Resignation of Nicholas D. DRADER, Bar No. 9380.
    No. 78648
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    Granted.


text:
    Bertral WASHINGTON, an Individual; and Cheri Washington, an Individual, Appellants, v. AA PRIMO BUILDERS, LLC, a Nevada Limited Liability Company, Respondent.
    No. 74101
    Supreme Court of Nevada.
    FILED APRIL 30, 2019
    VACATED. REMAND.


text:
    Miguel Angel RAMIREZ, Appellant, v. The State of Nevada BOARD OF PAROLE; and the State of Nevada, Respondents.
    No. 78612
    Supreme Court of Nevada.
    FILED MAY 07, 2019
    DISMISSED.


text:
    In the MATTER OF Resignation of Richard C. SIPAN, Bar No. 3155.
    No. 78679
    Supreme Court of Nevada.
    FILED MAY 07, 2019
    Granted.


text:
    In the MATTER OF the BOLAND FAMILY TRUST U/A/D 08/12/1991.
    Nina Marie Goodman, Individually and as Trustee of the Boland Family Trust, Appellant, v. Joseph Boland, Respondent.
    No. 75568
    Supreme Court of Nevada.
    FILED MAY 07, 2019
    Dismissed.


text:
    Emil ANTHONY, Appellant, v. The STATE of Nevada, Respondent.
    No. 78369
    Supreme Court of Nevada.
    FILED MAY 5, 2019
    DISMISSED.


text:
    Leo SWITZER, Appellant, v. Patrick KELLER, Respondent.
    No. 77394
    Supreme Court of Nevada.
    FILED MAY 10, 2019
    Dismissed.


text:
    In the MATTER OF DISCIPLINE OF Luigino LOBELLO, Bar No. 13712.
    No. 77974
    Supreme Court of Nevada.
    FILED MAY 10, 2019
    Suspend.


text:
    Brian Kerry O'KEEFE, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Michael Villani, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
    No. 78680
    Supreme Court of Nevada.
    FILED MAY 10, 2019
    DENIED.


text:
    In the MATTER OF the Honorable Martin HASTINGS, Las Vegas Municipal Court, Dept. 6, Clark County, State of Nevada.
    No. 78271
    Supreme Court of Nevada.
    FILED MAY 08, 2019
    Administratively close.


text:
    ACC INDUSTRIES, INC., a Nevada Corporation; ACC Enterprises, LLC, a Nevada Limited Liability Company; Howard Misle, an Individual; and Peter Seltzer, an Individual, Appellants, v. HILL HEALTH, LLC, a Nevada Limited Liability Company; and InsightMedica, LLC, a Nevada Limited Liability Company, Respondents.
    No. 76828
    Supreme Court of Nevada.
    FILED MAY 07, 2019
    Dismissed.


text:
    John Oliver SNOW, Appellant, v. The STATE of Nevada, Respondent.
    No. 78607
    Supreme Court of Nevada.
    FILED May 6, 2019
    DISMISSED.


author: PER CURIAM:

text:
    Glenn Miller DOOLIN, Appellant, v. The State of Nevada DEPARTMENT OF CORRECTIONS, Respondent.
    No. 73698-COA
    Court of Appeals of Nevada.
    Filed December 13, 2018
    Glenn Miller Doolin, Indian Springs, in Pro Se.
    Adam Paul Laxalt, Attorney General, and Jessica E. Perlick, Deputy Attorney General, Carson City, for Respondent.
    BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
   PER CURIAM:

The issue presented in this appeal is whether an offender may have statutory credit earned pursuant to NRS 209.4465 applied to the offender's parole eligibility and minimum term for a sentence imposed pursuant to NRS 207.010. We conclude that both the sentence and category of conviction are enhanced when an offender is adjudicated a habitual criminal pursuant to NRS 207.010. And because such an adjudication will always enhance a conviction for a lower category felony to either a category A or B felony, we hold NRS 209.4465(8)(d) precludes application of statutory credit to an offender's parole eligibility and minimum term for a sentence imposed pursuant to NRS 207.010. Because Glenn Miller Doolin was adjudicated a habitual criminal pursuant to NRS 207.010(1)(a), we conclude the district court correctly determined Doolin was not entitled to the application of credit to his parole eligibility and minimum term. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

Doolin was convicted of grand larceny of a motor vehicle, a category C felony, see NRS 205.228(2), and possession of burglary tools, a gross misdemeanor, see NRS 205.080(1), for crimes he committed in 2012. For the grand larceny of a motor vehicle count, the district court adjudicated Doolin a habitual criminal and sentenced him, pursuant to the small habitual criminal enhancement, to a prison term of 60 to 150 months. See NRS 207.010(1)(a). The district court also sentenced Doolin to serve a consecutive term of 12 months in the Clark County Detention Center for his possession of burglary tools conviction.

Doolin filed a postconviction petition for a writ of habeas corpus and supplemental petition in which he challenged the computation of time served for his prison sentence. Doolin claimed the Nevada Department of Corrections has failed to apply statutory credit toward his parole eligibility and minimum term. The district court concluded Doolin was not entitled to relief and denied the petition. This appeal follows.

ANALYSIS

Doolin claims the district court erred by finding he is not entitled to have the statutory credit he has earned applied to his parole eligibility and minimum term. He asserts the exclusion in NRS 209.4465(8)(d) does not apply to him because, although he was punished as a category B felon under the habitual criminal statute, he was only convicted of a category C felony.

Doolin observes that NRS 209.4465(8)(d) excludes the application of statutory credit to the parole eligibility and minimum term for a sentence for an offender who is "convicted of: ... [a] category A or B felony" (emphasis added), but NRS 207.010(1)(a) states that an offender who is adjudicated a habitual criminal "shall be punished for a category B felony" (emphasis added). Doolin urges this court to conclude that the Legislature's use of convicted in NRS 209.4465(8)(d) and punished in NRS 207.010(1)(a) indicate NRS 209.4465(8)(d) was not intended to preclude the application of statutory credit to a sentence imposed pursuant to NRS 207.010. See Williams v. State Dep't of Corr. , 133 Nev. ----, ----, 402 P.3d 1260, 1264 (2017) (stating courts "must presume that the variation in language indicates a variation in meaning").

Doolin asserts Howard v. State , 83 Nev. 53, 422 P.2d 548 (1967), and Parkerson v. State , 100 Nev. 222, 678 P.2d 1155 (1984), support such a conclusion. Howard and Parkerson state the habitual criminal enhancement is not a separate offense and only acts to increase an offender's punishment. Howard , 83 Nev. at 56, 422 P.2d at 550 ; Parkerson , 100 Nev. at 224, 678 P.2d at 1156. Doolin argues Howard and Parkerson thus imply that sentencing under the habitual criminal enhancement does not equate to a conviction.

He further argues that this, in turn, means imposition of the habitual criminal enhancement does not alter the category of felony he was convicted of committing, and he is entitled to application of statutory credit toward his parole eligibility and minimum term as an offender convicted of a category C felony.

The ultimate question we must answer is whether NRS 209.4465(8)(d) precludes an offender sentenced pursuant to NRS 207.010 from having statutory credit applied to his or her parole eligibility and minimum term for that sentence. To answer this question, we must first decide whether habitual criminal adjudication pursuant to NRS 207.010 enhances both the sentence and category of conviction, i.e., whether an offender who is "punished for a category B felony" under NRS 207.010(1)(a) is also convicted of a category B felony. The resolution of this issue is a matter of statutory interpretation.

"Statutory interpretation is an issue of law subject to de novo review." Hobbs v. State , 127 Nev. 234, 237, 251 P.3d 177, 179 (2011). The goal of statutory interpretation "is to give effect to the Legislature's intent," Id. To ascertain the Legislature's intent, we first focus our inquiry on the statute's plain language, "avoid[ing] statutory interpretation that renders language meaningless or superfluous." Id. "[W]henever possible, [we] will interpret a rule or statute in harmony with other rules or statutes." Watson Rounds v. Eighth Judicial Dist. Court , 131 Nev. 783, 789, 358 P.3d 228, 232 (2015) (internal quotation marks omitted). "[W]hen a statute's language is clear and unambiguous, the apparent intent must be given effect, as there is no room for construction." Edgington v. Edgington , 119 Nev. 577, 582-83, 80 P.3d 1282, 1286 (2003).

Doolin is correct in that the statutes he compares use different language and the habitual criminal enhancement is not considered a separate conviction apart from the underlying offense, see Howard , 83 Nev. at 56, 422 P.2d at 550. However, Doolin's argument that habitual criminal adjudication does not enhance the category of felony an offender is convicted of fails to consider NRS Chapter 207's overall habitual criminal scheme and, in particular, ignores a key provision that governs the imposition of the habitual criminal enhancement.

Pursuant to NRS 207.010(1)(a), offenders sentenced under the small habitual criminal enhancement are "punished for a category B felony." Similarly, NRS 207.010(1)(b) states that offenders sentenced under the large habitual criminal enhancement are "punished for a category A felony." Although NRS 207.010 uses the word punished , NRS 207.016(1) states "[a] conviction pursuant to NRS 207.010... operates only to increase, not to reduce, the sentence otherwise provided by law for the principal crime" (emphasis added). Thus, NRS 207.016(1) states an offender who has been sentenced under NRS 207.010 has been convicted under NRS 207.010. Reading NRS 207.010 and NRS 207.016(1) in harmony, we conclude the plain language of those statutes demonstrates the Legislature intended for both the sentence and category of conviction to be enhanced when an offender is adjudicated a habitual criminal pursuant to NRS 207.010.

This conclusion is not contrary to, and does not alter, prior decisions explaining that the habitual criminal enhancement is not a separate offense, but rather a status that "allows enlarged punishment," Howard , 83 Nev. at 57, 422 P.2d at 550, because the enhancement of the category of conviction does not change the elements of the underlying crime or create a new crime; rather, it only operates to increase the punishment for a recidivist. This is consistent with the Legislature's approach to other criminal enhancements that are based on prior convictions, such as the enhancements for battery constituting domestic violence and driving under the influence. For each of those crimes, an offender's sentence and category of conviction may be enhanced following submission of evidence of the offender's prior criminal convictions. See NRS 200.485(1)(a)-(c) ; NRS 484C.400(1)(a)-(c).

Because we conclude the meaning of the statutory language in NRS 207.010 and NRS 207.016 is plain, there is no need to look to legislative history. See State v. Lucero , 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011) (stating courts should look to legislative history when the statute is ambiguous, i.e., "when the statutory language lends itself to two or more reasonable interpretations" (internal quotation marks omitted) ). We nevertheless note the legislative history also supports this interpretation.

NRS 207.010 was enacted in 1995 after approval of Senate Bill 416, which made "Various changes regarding sentencing of persons convicted of felonies," Hearing on S.B. 416 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 1, 1995). See 1995 Nev. Stat., ch. 443, §§ 180-81, at 1237-38. The legislative history for Senate Bill 416 includes a crimes category chart that listed the small habitual criminal enhancement with the category B felonies and the large habitual criminal enhancement with the category A felonies. Hearing on S.B. 416 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., May 1, 1995) (Exhibit F). Given this chart, it appears the Legislature did not intend for habitual criminal adjudication to retain the category of felony of the underlying crime and only enhance the range of punishment that may be imposed. Accordingly, we conclude the legislative history indicates that the Legislature intended for both the sentence and category of conviction to be enhanced when an offender is adjudicated a habitual criminal pursuant to NRS 207.010.

For the reasons stated above, we conclude the plain language of the statutes demonstrates that both the sentence and category of conviction are enhanced when an offender is adjudicated a habitual criminal pursuant to NRS 207.010, and note this conclusion is also supported by legislative history. Therefore, when an offender is adjudicated a habitual criminal pursuant to NRS 207.010(1)(a), the conviction is enhanced and the offender is convicted of a category B felony, and when an offender is adjudicated a habitual criminal pursuant to NRS 207.010(1)(b), the conviction is enhanced and the offender is convicted of a category A felony.

Turning to the application of statutory credit under NRS 209.4465, we note NRS 209.4465(8)(d) precludes the application of statutory credit to an offender's parole eligibility and minimum term for a sentence on a conviction for a category A or B felony. Because we conclude adjudication as a habitual criminal pursuant to NRS 207.010 enhances both the sentence and category of conviction, we hold that an offender who is adjudicated a habitual criminal pursuant to NRS 207.010 is not entitled to have statutory credit applied to the eligibility for parole and minimum term for that sentence.

Here, although grand larceny of a motor vehicle is a category C felony, because Doolin was adjudicated a habitual criminal pursuant to NRS 207.010(1)(a), his category of conviction was enhanced to a category B felony. Therefore, NRS 209.4465(8)(d) precludes application of statutory credit to his parole eligibility and minimum term. Accordingly, we conclude the district court did not err by denying Doolin's petition.

CONCLUSION

We conclude habitual criminal adjudication pursuant to NRS 207.010 enhances both the sentence and category of conviction. Thus, habitual criminal adjudication pursuant to NRS 207.010 will always enhance a conviction for a lower category felony, and the offender will be convicted of either a category A or B felony. We therefore hold that NRS 209.4465(8)(d) precludes application of statutory credit to an offender's parole eligibility and minimum term for a sentence imposed pursuant to NRS 207.010. Because Doolin was adjudicated a habitual criminal pursuant to NRS 207.010(1)(a), NRS 209.4465(8)(d) precludes application of statutory credit to his parole eligibility and minimum term. Accordingly, we conclude the district court properly denied Doolin's petition. Therefore, we affirm.

      To the extent Doolin argues the rule of lenity requires resolution of any ambiguity in his favor, this argument lacks merit. Because there is no unresolved ambiguity, the rule of lenity does not apply. See Lucero , 127 Nev. at 99, 249 P.3d at 1230 ("Because ambiguity is the cornerstone of the rule of lenity, the rule only applies when other statutory interpretation methods, including the plain language, legislative history, reason, and public policy, have failed to resolve a penal statute's ambiguity.").


author: Colbert, J.

text:
    In re the Marriage of: Matthew L. ANTINI, Appellee, v. Angela M. ANTINI, Appellant.
    No. 115,002
    Supreme Court of Oklahoma.
    FILED APRIL 9, 2019
    Kade A. McClure, Richard J. Goralewicz, Legal Aid Services of Oklahoma, Inc., Oklahoma City, for Appellant.
    Joe K. White, Duncan, OK, for Appellee.
   Colbert, J.

¶ 1 At issue is whether Okla. Stat. tit. 43, § 551-312 of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") requires a court to award prevailing party attorney fees to entities rendering legal services to clients at no cost. We answer in the affirmative.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Appellant, Angela M. Antini, and Appellee, Matthew L. Antini, are the biological parents of two minor children. In November 2013, the parties were granted a Judgment of Divorce in the State of New York. In it, the court awarded Appellant physical custody over the children with the parties sharing joint legal custody. Appellee was granted visitation rights and ordered to pay child support.

¶ 3 In 2013, prior to the entry of the Judgment of Divorce, Appellant moved with the children from New York to Maine. In April 2014, Appellee picked the children up in Maine for visitation but transported them to Oklahoma and, despite Appellant's requests and her subsequent trip to Oklahoma to recover the children, Appellee refused to return them. On May 19, 2014, after it became apparent that Appellee was not going to return the children, Appellant registered the New York divorce decree as a foreign judgment in a Maine court and filed a motion for contempt against Appellee on May 21, 2014. The court ordered Appellee to appear with the children. However, Appellee did not do so and the Maine court found Appellee in contempt on September 24, 2014. Appellee ignored an offer to purge his contempt by returning both children by September 26, 2014, and Appellee never returned the children to Maine. Because of this failure to return the children, the Maine court issued a bench warrant for Appellee.

¶ 4 On December 16, 2014, Appellee filed a petition in the District Court of Stephens County, State of Oklahoma, to register the New York divorce decree in Oklahoma and asked the court to assume custody jurisdiction. Appellee's petition did not reference the registration of the New York Decree in Maine nor the contempt proceedings in Maine. In response, Appellant filed a special appearance in the trial court objecting to the registration of the New York final judgment of divorce and also filed a petition and application for a writ of habeas corpus requesting custody of the minor children. On March 17, 2015, the court found that "pursuant to the Oklahoma Uniform Child Custody Jurisdiction and Enforcement Act, 43 O.S. §§ 551-201 et.seq. the [S]tate of Oklahoma has no jurisdiction in this matter and that this action should be dismissed." Maine retained child custody jurisdiction and ordered the return of the children to Appellant. The Oklahoma court also denied and dismissed the petition to register the New York decree in Oklahoma.

¶ 5 On April 21, 2015, Appellant filed a pro se motion to modify custody in the Maine court, requesting sole custody of the children and granting Appellee supervised visitation. Appellee responded with an answer and counterclaim on May 7, 2015, but then failed to appear before the Maine court. The Maine court then granted Appellant's motion and ruled it had exclusive and continuing jurisdiction over the children. No appeal of the Maine court's decision was entered and the decision is now final under Maine law.

¶ 6 On April 29, 2015, Appellee filed in the Oklahoma court a Motion to Reconsider the March 17, 2015, decision, denying and dismissing Appellee's motion to register the New York judgment in Oklahoma and granting custody of the minor children to Appellant. That motion was heard on April 14, 2016, and the court issued its decision denying the motion and dismissing the petition.

¶ 7 Subsequently, Appellant filed a Motion for Costs and Attorney's Fees pursuant to Okla. Stat. tit. 43, § 551-312, a fee-shifting statute within the UCCJEA. That section mandates that a court award to the prevailing party

necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

In the motion, counsel sought payment of prevailing party attorney fees and reimbursement of costs for transcripts. The court denied her motion, finding, as a matter of law, that attorney fees can only be awarded under the UCCJEA to a party who has retained counsel and personally paid for their services. That is, Appellant's counsel was not entitled to a reasonable attorney fee merely because Appellant was represented by Legal Aid Services of Oklahoma, Inc. The court further denied Appellant's request for transcription costs reasoning that the issue of costs for transcription of a default modification of divorce decree hearing in Maine should be decided in Maine.

¶ 8 Appellant appealed. On appeal, the Court of Civil Appeals affirmed the district court as to the claim for attorney's fees but reversed and remanded on the issue of transcription costs. In so doing, the court held that "[w]ithout ... guidance, either from the Legislature or the Oklahoma Supreme Court, Okla. Stat. tit. 43, § 551-312 (2011) does not statutorily mandate attorney fee awards to prevailing parties when the prevailing party receives free legal services." But, the court further held that because the transcription of the hearing in Maine was vital to the Oklahoma trial court's determination that it lacked jurisdiction, Appellant should be awarded the transcription cost pursuant to § 551-312. Appellant sought certiorari review.

II. STANDARD OF REVIEW

¶ 9 The issue presented in this case is one of statutory interpretation. Statutory interpretation presents a question of law which this Court reviews under a de novo standard. Corbeil v. Emricks Van & Storage, 2017 OK 71, ¶ 10, 404 P.3d 856, 858 ; Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 10, 391 P.3d 111, 115. In conducting de novo review, this Court possesses plenary, independent, and non-deferential authority to examine the lower tribunal's legal rulings. Corbeil, 2017 OK 71, ¶ 10, 404 P.3d at 858.

¶ 10 At issue is whether Okla. Stat. tit. 43, § 551-312 (2011) excepts a class of attorneys from recovering prevailing party attorney fees for services rendered at no cost to their client. To answer this question, this Court must interpret and give ordinary meaning to the plain language of a statute while balancing the Legislature's intent. Statutory interpretation and ascertaining Legislative intent present questions of law which this Court reviews de novo. See Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8, 33 P.3d 302, 305 ; see also Baptist Med. Ctr. v. Pruett, 1999 OK CIV APP 39, ¶ 11, 978 P.2d 1005, 1008 ("Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling.").

III. DISCUSSION

A. The plain language of Okla. Stat. tit. 43, § 551-312 (2011) requires the trial court to award to a prevailing party a reasonable attorney fee, without regard to whether or not the cost of the representation was passed onto the client.

¶ 11 Oklahoma follows the "American Rule" which states generally that the cost of litigation is borne distinctly by each litigant and that the court is without authority to assess attorney fee awards without statutory authority to do so. Fulsom v. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d 652, 655 (citations omitted). Fee-shifting statutes are strictly construed because of the "chilling" effect the statutes have on access to courts. Id. Thus, proper application of § 551-312 requires that we ascertain the Legislature's intent when the UCCJEA was enacted. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017, 1020.

¶ 12 Legislative intent is presumed to be expressed in the statute's text, and, where the language of the statute is plain and unambiguous, the court will not supplant its own interpretation in its place. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 15, 16 P.3d 1120, 1125. "The [w]ords and phrases of a statute are to be understood and used not in an abstract sense, but with due regard for context, and they must harmonize with other sections of the Act." Tate, 2012 OK 31, ¶ 7, 276 P.3d at 1020. Section 551-312 is a fee-shifting statute and must be interpreted according to its own terms. State ex rel. Dep't of Transp. v. Norman Indus. Dev. Corp., 2001 OK 72, ¶ 17, 41 P.3d 960, 965-66. Moreover, "courts should not read into a statute exceptions not made by the Legislature." Seventeen Hundred Peoria, Inc. v. City of Tulsa, 1966 OK 155, ¶ 14, 422 P.2d 840, 843 (citation omitted). When a legislature intends for an exception to exist within a statute, it is free to do so, and when the language used is broad and comprehensive and no exception is made, it is conclusive evidence that no exception is intended. City of Chickasha v. O'Brien, 1915 OK 813, ¶ 15, 58 Okla. 46, 159 P. 282, 284.

¶ 13 The UCCJEA has been adopted by 49 states, including Oklahoma, to prevent forum shopping schemes and to combat interstate custody disputes. Summarily, the purposes of the UCCJEA are to: (1) avoid jurisdictional competition in child custody cases; (2) promote cooperation with the courts of other states; (3) discourage the use of the interstate system for the same; (4) deter abductions of children; (5) avoid relitigation of custody decisions of other states in this State; and (6) facilitate the enforcement of custody decrees of other states. Okla. Stat. tit. 43, § 551-101, Official Comment (2011); see also, Uniform Child Custody Jurisdiction Act (1968) § 1. Article Three of Oklahoma's UCCJEA ("Enforcement") includes § 551-312, which provides in its entirety:

A. The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
B. The court may not assess fees, costs, or expenses against a state unless authorized by laws other than this act.
(emphasis added).

¶ 14 The word "shall" expresses a command or a mandatory directive creating an unequivocal right that leaves no discretion with the court to deny it. Sooner Builders & Invs., Inc. v. Nolan Hatcher Constr. Servs., L.L.C., 2007 OK 50, ¶ 17, 164 P.3d 1063, 1069 (citing Macy v. Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147, 153 ; Forest Oil v. Okla. Corp. Comm'n, 1990 OK 58, ¶ 27, 807 P.2d 774, 787 ). The party that receives "the greatest affirmative judgment" is the prevailing party. Am. Superior Feeds, Inc. v. Mason Warehouse, Inc., 1997 OK CIV APP 43, ¶ 4, 943 P.2d 171, 173-74. The plain meaning of "prevailing party" refers to the stronger or more victorious party. Sooner Builders & Invs., Inc., 2007 OK 50, ¶ 17, 164 P.3d at 1069 (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ). Similarly, as a legal term of art, "prevailing party" means the successful party who has been awarded relief on the merits of his or her claim. Id."The language 'reasonable attorney's fees, costs, charges and expenses' places the amount of money which the prevailing party has a right to recover within the discretion of the court ... to decide what are reasonable amounts for attorney fees and expenses expended or incurred by the prevailing party." Id.

¶ 15 Applying this guidance, the term "shall" in § 551-312 does not leave the decision of whether to award fees to the trial court's discretion. It is a mandate which unequivocally recognizes the right of the prevailing party under the UCCJEA to receive reasonable fees and costs incurred during litigation. Here, Appellant was unquestionably the prevailing party because she was granted relief on the merits of her claim by regaining the custody of her children at the habeas corpus/custody hearing and by ultimately obtaining the dismissal of Appellee's petition to register the New York Final Judgment of Divorce in Oklahoma. Though the burden would typically be upon the non-moving party to demonstrate that the fee-shift would be "clearly inappropriate," the amount of fees and costs requested by Appellant is not at issue. Rather, it's whether fees must be granted in the first instance. With that understood, the only question left to be determined is the meaning of "on behalf of" within the phrase "necessary and reasonable expenses incurred by or on behalf of the party." Specifically, whether counsel can recoup expenses and necessary and reasonable costs incurred on behalf of their prevailing client.

¶ 16 Although "on behalf of" has not been interpreted by this Court in this context, the Tenth Circuit Court provides guidance in United States v. Frazier, holding that "the phrase 'on behalf of' means: (1) as a representative of; or (2) in the interest or aid of." 53 F.3d 1105, 1112 (10th Cir. 1995). The Black's Law Dictionary's definition of "behalf" resembles the Tenth Circuit's interpretation: "on behalf of means in the name of, on the part of, as the agent or representative of." Behalf, Black's Law Dictionary (10th ed. 2014).

¶ 17 It goes without question that legal representation comes at a cost. Nor can it be questioned that, attorneys who represent but do not pass the cost of representation onto their clients, are the client's representative and act in the client's best interest. Whether this service is paid for by the client, by the public, or not at all has no effect on this inquiry. Consequently, it becomes apparent that "on behalf of" discloses legislative intent that fees must be awarded even where the party did not pay for the legal services. Ruling otherwise would render the phrase "on behalf of" superfluous, something this Court declines to do. Odom v. Penske Truck Leasing Co., 2018 OK 23, ¶ 36, 415 P.3d 521, 532 (citations omitted).

¶ 18 In enacting the UCCJEA, the Oklahoma Legislature did not distinguish between legal entities or services that pass on their expenses to their clients or those that do no pass on these expenses. We construe the absence of such a carve-out exception is a meaningful omission. O'Brien, 1915 OK 813, ¶ 15, 159 P. at 284. If the Legislature wanted such an exception to exist they would have explicitly included one. It is not up to this Court to read such an exception into the statute and there is no indication from the Legislature that such an exception was so intended. Because the Oklahoma district court, in this case, did read an exception into the statute, the order of the Oklahoma district court was in error.

B. Today's holding aligns with the jurisprudence of other courts that have interpreted statutes that are similar to § 551-312.

¶ 19 Although this Court has not ruled squarely on this issue, the clear trend among state and federal courts is to award attorney fees even when the prevailing party did not directly pay for the representation. The Nevada Supreme Court in Miller v. Wilfong expressed several rationales for awarding prevailing party attorney fees when that party is represented at no charge. See, Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727. The Miller Court found that in family law disputes, "one partner has often created or contributed to the other partner's limited financial means" and that in those cases, "if fees are not awarded to pro bono counsel, a wealthier litigant would benefit from creating conditions that force the other party to seek legal aid." Id. at 729-30. The Alaska Supreme Court ruled likewise in an action brought under the UCCJEA in Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006). The Vazquez Court rejected the notion that fees are only "incurred" if the prevailing party pays their attorney and held that "clients receiving free legal services may recover attorney's fees." Id. at 3. Other courts have ruled similarly in domestic disputes. See, Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992) (holding that public policy would be undermined if a party must be personally obligated to pay fees before the court could order them reimbursed); Henriquez v. Henriquez, 413 Md. 287, 299, 992 A.2d 446, 454 (refusing to insert language into fee-shifting statute that would require parties to pay counsel before being awarded fees); Healdsburg Citizens of Sustainable Solutions v. City of Healdsburg, 206 Cal.App.4th 988, 993, 142 Cal.Rptr.3d 250, 254 (1st Dist. 2012) (awarding attorney fees where legal services were provided at no personal expense to the client).

¶ 20 The Official Comment to § 551-312 states that the section is derived from the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11607(b)(3) . Several courts have applied § 11607(b)(3) to award attorney's fees in the pro bono posture and, though this Court is not bound by the federal courts' pronouncements on a state law question, Johnson v. Ford Motor Co., 2002 OK 24, ¶ 26, 45 P.3d 86, 95, their decisions are instructive.

¶ 21 In Cuellar v. Joyce, the Ninth Circuit awarded attorneys' fees to a prevailing party that was represented for free. 603 F.3d 1142 (9th Cir. 2010). There, the defendant abducted his and the plaintiff's child and fled from Panama to America. Id. at 1143. The plaintiff petitioned for the return of her child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (and its implementing statute, ICARA). Id. The Ninth Circuit ordered the child returned and the plaintiff petitioned for an award of attorneys' fees. Id. The court granted the petition, holding that "[f]ee awards serve in part to deter frivolous litigation," and to deny fees to counsel working for free would "encourage abducting parents to engage in improper ... tactics ... when the [opposing party] is represented by pro bono counsel." Id. Other courts have applied § 11607(b)(3) similarly. See,_ e.g., Salazar v. Maimon, 750 F.3d 514, 520 (5th Cir. 2014) ; Mendoza v. Silva, 987 F.Supp.2d 910, 917 (N.D. Iowa 2014) ; Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 (N.D. Ohio 2008) ; Saldivar v. Rodela, 894 F.Supp.2d 916, 927-28 (W.D. Tex. 2012) ; Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 816-17 (N.D. Iowa 2003) ; Larrategui v. Laborde, No. 2:2013cv01175, 2014 WL 2154477 (E.D. Cal. May 22, 2014) ; Aguilera v. De Lara, No. 2:2014cv01209, 2014 WL 4204947, at *2 n.1 (D. Ariz. Aug. 25, 2014).

¶ 22 Federal courts ruling on issues outside the realm of child custody issues also align with our decision today. In 1996, the Tenth Circuit in Martinez v. Roscoe awarded attorney's fees to a publicly funded legal aid program "perceiv[ing] no reason to distinguish between attorneys who are paid by a party and attorneys who are paid with public funds." 100 F.3d 121, 124. The court further noted that the purpose of the award of attorney fees (in that case) was to "sanction [the] defendants" and that compelling them to pay plaintiff's fees "serve[s] that purpose," and further cited many cases upholding fees for legal service providers: Rodriguez v. Taylor, 569 F.2d 1231, 1244-46 (3d Cir. 1977) ; Torres v. Sachs, 538 F.2d 10, 12 (2d Cir. 1976) ; New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 70 n.9, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) ; and Blum v. Stenson, 465 U.S. 886, 894-95, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

¶ 23 Expanding the Martinez ruling, the Third Circuit in Rodriguez noted that "[a]ssessing fees against defendants in all circumstances [including those in which plaintiffs were represented by publicly funded legal providers] may deter wrongdoing in the first place." Rodriguez, 569 F.2d at 1245 ; see also Cornella v. Schweiker, 728 F.2d 978, 986-87 (8th Cir.1984) ("If attorneys' fees to pro bono organizations are not allowed in litigation against the federal government, it would more than likely discourage involvement by these organizations in such cases, effectively reducing access to the judiciary for indigent individuals."); Hairston v. R & R Apartments, 510 F.2d 1090, 1092 (7th Cir.1975) (awarding fees to pro bono counsel under 42 U.S.C. § 3612(c), the Fair Housing Act's fee-shifting provisions).

¶ 24 Finally, our holding today is in line with United States Supreme Court jurisprudence. In Blum v. Stenson, the United States Supreme Court laid out the policy as follows:

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. The citations to Stanford Daily and Davis [v. County of Los Angeles, 1974 WL 180 ] make this explicit. In Stanford Daily, the court held that it "must avoid ... decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." 64 F.R.D. 680, 681 (1974).
In Davis, the court held:
In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel ... are employed by ... a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorneys' fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees.

465 U.S. 886, 894-95, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (citation omitted). We join those courts today.

C. If § 551-312 were held to exclude attorneys rendering legal services to clients at no cost, many Oklahomans would lose court access.

¶ 25 Article II of the Oklahoma Constitution states: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." Okla. Const. art. II, § 6. This premise guides our decision today.

¶ 26 A party's right to court access is paramount. We recognized the need for a process to provide legal services to low income Oklahomans. Yet, attainment of such a vital service would not be possible without the work of our publicly funded legal groups who work to represent the indigent.

¶ 27 Litigation, whether privately or publicly funded, is never free. And, nothing saps a legal service provider's resources more than a high volume of litigated cases. But, when faced with this dilemma of balancing a high volume need and a legal provider's limited resources, that provider must pick and choose between numerous clients--all whom have the right to seek relief in the courts of justice. See Okla. Const. art. II, § 6.

¶ 28 The stakes are even higher in an action brought under the UCCJEA. Child custody and the sanctity of Oklahoma families would ultimately be at stake if we held otherwise. Without the fear of fee-shifting, parties would file frivolous lawsuits, and abductors, whereas here, would not be held accountable if the aggrieved parent could not afford representation and courts woefully denied reasonable attorney fees merely because the provider rendering the service did not pass the litigation cost on to the indigent client.

¶ 29 Finally, the irony of holding otherwise is apparent in the present nature of attorney fee awards. In Hamilton v. Telex Corp., we held that attorneys representing themselves pro se could recover fees as the prevailing party. 1981 OK 22, ¶ 16, 625 P.2d 106, 109. Given our concepts of justice, it would be an unjust and unfair world in which attorneys serving their own self-interest could recover their fees, while those attorneys achieving meaningful court access for their clients do not.

IV. CONCLUSION

¶ 30 The plain language of Okla. Stat. tit. 43, § 551-312 (2011) mandates the award of a reasonable attorney's fee to the prevailing party and the award of reasonable and necessary costs incurred by or on behalf of the party. The phrase "on behalf of" discloses legislative intent that these awards are not limited to private counsel, but also extends to those providing legal services at no cost to indigent clients. Accordingly, to the award of attorney's fees, the district court's order is reversed and this matter is remanded for a determination and award of a reasonable attorney's fee.

¶ 31 We further hold that the transcription costs borne by Appellant are necessary and reasonable expenses and fall squarely within the purview of § 551-312. The decision on whether a transcript should be taxable in a given case must be made by the court with first-hand knowledge of the proceedings. Here, the transcript was submitted as evidence in the Oklahoma court proceeding and provided a comprehensive basis of Appellant's jurisdictional argument to dismiss the Oklahoma Petition to Register Foreign Judgment. This evidence was not only useful, but critical to the court's determination that it lacked jurisdiction. The district court's ruling to the contrary was in error.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT ORDER REVERSED AND REMANDED WITH INSTRUCTIONS.

CONCUR: Gurich, C.J., Winchester, Edmondson, Colbert, Reif, Combs, Darby, JJ.

CONCUR IN JUDGMENT: Wyrick, V.C.J. and Kauger, J.

I concur in judgment, and concur in all parts of the opinion, except for Part III.C.

      Okla. Stat. tit. 43, § 551-312 (2011) Official Comment; see also, 22 U.S.C. § 9007

      42 U.S.C. § 11607(b)(3) has been re-codified at 22 U.S.C. § 9007(b)(3).

      Okla. Stat. tit. 43, § 551-101 (Official Comment) (Stated purpose of the UCCJEA)