Faessel v. Second Judicial District Court

OPINION By the Court, Springer, J.: This case involves a petition for writ of mandamus in which petitioner Matthew David Faessel seeks a writ commanding that the district court order that a preliminary examination and binding over be completed as a condition to the filing of an information against him. We grant the petition, holding that Faessel, a child who was certified as an adult under NRS 62.080, is entitled to all “proper criminal proceedings” under Title 14, Nevada Revised Statutes. Under NRS 62.080 “a child 16 years or older” who is charged with a felonious offense may be certified by the juvenile court “for proper criminal proceedings” in the adult court. Faessel is [107] such a child and has been so certified for proper criminal proceedings as an adult. NRS 62.080 certification is not a criminal proceeding. Proceedings in juvenile court are civil and “not criminal in nature.” NRS 62.193. Once the civil proceedings under NRS 62.080 have led to certification, however, the subject becomes, in the eyes of the criminal law, an adult. “Adult” is defined in the juvenile court act as “a person between the ages of 16 and 18 who has been certified as an adult.” NRS 62.020(1). Faessel is, therefore, to be considered as and treated as an adult who is charged with commission of a crime and is entitled to “proper criminal proceedings” under our code of criminal procedure. Under Title 14, Procedure in Criminal Cases, the “first pleading on the part of the state is the indictment or information.” NRS 173.015. Faessel was not indicted; so we look to the code provisions relating to the filing of an accusation by information. “An information may be filed against any person for any offense when [1] the person . . . [h]as had a preliminary examination as provided by law before a justice of the peace, or other examining officer or magistrate, and [2] has been bound over to appear at the court having jurisdiction.” NRS 173.035. Faessel’s contention is simply this: “Now that you have made me an adult, you must either indict me or inform against me. An information can be filed only after a preliminary examination has been held, and I have been bound over to appear before the court having jurisdiction, namely, the adult division of the Second Judicial District Court.” We agree and hold that “proper criminal proceedings” require that Faessel be entitled, as is the case for any other adult defendant, to have a preliminary examination and be bound over before an information can be filed. See Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979). The state claims that Faessel had the equivalent of a preliminary examination and bind-over when he went through the juvenile certification process in the juvenile court. It is very difficult to follow this argument when one is reminded that the certification proceeding, a civil matter conducted in the juvenile court, does not remotely resemble a preliminary examination, and, even if it did, the juvenile court has no power to order that anyone be “bound over to appear” in district court. The juvenile court inquest leading to certification is designed to determine whether the public interest and safety requires that a given minor be prosecuted as an adult. The juvenile court judge is required to consider a “decisional matrix” made up of such matters as the nature and seriousness of the offense, the persist-ency and seriousness of past offenses and subjective factors relating to the offender. In the Matter of Seven Minors, 99 Nev. [108] 427, 664 P.2d 947 (1983). Before the juvenile court can make a decision to certify a child to the adult criminal court, prudence dictates that some determination be made that the court is dealing with someone who probably committed a criminal offense. We have thus insisted that the juvenile courts make a threshold finding of “prosecutive merit,” this is to say, a finding that probable cause exists that the minor committed the offense of which he is accused. Thus, as said in Seven Minors, a threshold finding of prosecutive merit is a matter of judicial economy. “If there is no prima facie case to support the charge, there is no point in the court’s involving itself further in the process.” Seven Minors, 99 Nev. at 437, 664 P.2d at 953 (emphasis in original). “ ‘Prosecutive merit’ is a term referring to the necessity for establishing the merit of the prosecution’s case as a condition for proceeding with the transfer [certification] process.” Seven Minors, 99 Nev. at 437, 664 P.2d at 953. “[T]he first business of the juvenile court in a transfer proceeding should be a resolution of the threshold requirement of prosecutive merit. The necessary determination of probable cause can be made preliminarily by the court on the basis of the written record. An adversary hearing is not required, and the probable cause finding may be based on evidence taken from the petition, sworn investigative reports, witnesses’ affidavits, police affidavits, or other informal but reliable evidence.” In re Three Minors, 100 Nev. 414, 418, 684 P.2d 1121, 1123 (1984). We have expressly held that due process in certification proceedings does not “require that a juvenile be given an adversary hearing comparable to [a] preliminary examination.” Id. It should be obvious that not only are preliminary examinations and juvenile certification proceedings conducted in different tribunals, the procedures, standards of proof and final objectives of each are radically different. Neither one can be said to be the equivalent of or a substitute for the other. It is possible, of course, that from time to time during some certification proceedings a relatively comprehensive and even adversary proceeding might be conducted by the juvenile court judge, but this would not validate the state’s position that a certification proceeding must be taken as the absolute equivalent of a preliminary examination and thus justify the filing of an information without benefit of the “proper criminal proceedings” set forth in Chapter 173. Further, even if we were to accept the position that a juvenile court judge’s adjudication of prosecutive merit is in all cases equivalent to a magisterial preliminary examination, a juvenile court does not have the statutory power or authority to cause an accused adult offender to be “bound over and appear” in the district court. The juvenile court judge in this case did not even purport to bind over this “adult,” and the [109] proceedings required by NRS 173.035 have not even been approached by the civil certification proceedings conducted by the juvenile court. A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station. NRS 34.160. Because the district court was obligated to afford Faessel a preliminary examination under the circumstances of this case, we grant Faessel’s petition for a writ of mandamus. Accordingly, the clerk of this court shall forthwith issue a writ of mandamus ordering that the information be quashed and that the state proceed against the petitioner only by proper criminal procedures as set forth in Title 14, Nevada Revised Statutes. Young, C. J., and Rose, J., concur.