Nevada Supreme Court’s Non-Intervention Principle in NGC Proceedings
In an article titled “A Wynn for the Nevada Gaming Commission,” Adam Hosmer-Henner explains the Nevada Supreme Court’s general principle of non-intervention in Nevada Gaming Commission proceedings. Adam’s article is published in the Appellate Briefs section of The Writ, the official publication of the Washoe County Bar Association. Jane Susskind provided research assistance for the article. The article is provided below.
“A Wynn for the Nevada Gaming Commission,” The Writ, Sept/Oct 2022
Nevada courts play an even more limited role in gaming proceedings than in other administrative proceedings. Judicial review is limited to the Nevada Gaming Commission’s final orders and even then only in specified instances. NRS 463.315(1); see also NRS 463.318(2) (judicial review is the exclusive method of review of the Commission’s actions and orders in disciplinary hearings). The Nevada Supreme Court “shows great deference to a Nevada Gaming Control Board decision on appeal” and will not overturn a decision unless it is “arbitrary, capricious or contrary to law.” Redmer v. Barbary Coast Hotel & Casino, 110 Nev. 374, 378, 872, P.2d 341, 344 (1994). In interpreting the scope of judicial review under the Nevada Gaming Control Act, the Nevada Supreme Court errs on the side of non-intervention and has repeatedly rejected attempts to expand the role of the courts in gaming proceedings. E.g., State Gaming Control Bd. V. Eighth Jud. Dist. Ct., 82 Nev. 38, 40, 409 P.2d 974, 975 (1996) (nullifying a district court’s order staying the administrative proceeding); Resnick v. Nev. Gaming Comm’n, 104 Nev. 60, 62, 752 P.2d 229, 230 (1988) (affirming the district court’s refusal to review the Commission’s interlocutory order denying discovery); State v. Eighth Jud. Dist. Ct., 111 Nev. 1023, 1024, 899 P.2d 1121, 1121 (1995) (reversing district court’s order granting motion to stay execution of the final order).
But who gets to decide the threshold question of whether the Commission has jurisdiction over a party in a disciplinary proceeding? The Nevada Supreme Court recently considered this question for the first time and, staying true to its general principle of non-intervention, concluded that this issue too was properly decided by the administrative agency. Nev. Gaming Comm’n v. Wynn, 138 Nev., Adv. Op. 20, 507 P.3d 183 (2022). In Wynn, the former CEO and Chairman of the Board of Directors of Wynn Resorts, Stephen Wynn, moved to dismiss a disciplinary proceeding, arguing that his resignation divested the Commission of jurisdiction. Id. at 184. After the Commission denied his motion, Wynn petitioned the district court for judicial review or alternatively, a writ of prohibition. Id. at 185. The district court denied Wynn’s request for judicial review because the Commission’s order denying Wynn’s motion to dismiss was not a final order under NRS 463.315(1) and the Nevada Supreme Court agreed. Id.
The district court did grant Wynn’s alternative request for a writ of prohibition. Id. It reasoned that because Wynn could not immediately seek judicial review under NRS 463.315(1), he lacked a plain, speedy, and adequate remedy such that relief was appropriate. The Nevada Supreme Court succinctly, yet forcefully, reversed. Writing for the unanimous en banc court, Justice Silver relied on the plain language of NRS 463.315(1), which limits judicial review to the Commission’s final order, and NRS 463.318(2), under which writ relief is not available “where statutory judicial review is made exclusive or is preclude, or the use of those writs or proceedings is precluded by specific statute.” Wynn, 138 Nev., Adv. Op. 20, 507 P.3d at 186 (quoting both statutes). When read together, these statutes preclude most interlocutory relief arising from Commission proceedings.
This result tracks the language and intent of the statutes but can result in an outcome where a party is forced to go through an entire administrative proceeding before a court can decide whether that proceeding was properly commenced in the first instance. Somewhat similarly, if an arbitration agreement includes a valid delegation clause, the arbitrator, rather than the courts, typically must rule upon a challenge to the validity of the arbitration agreement. See, e.g., Caremark, LLC v. Chickasaw Nation, No. 21-16209, 2022 WL 3206683, at *7 (9th Cir. Aug. 9, 2022). Thus, judicial review could be inefficiently withheld until the conclusion of the arbitration, leaving a party with little recourse but to proceed in arbitration. Not all administrative agencies in Nevada have the statutory protections enjoyed by the Commission, but when judicial review is limited by statute, then the Nevada Supreme Court rendered a clear opinion in Wynn that courts may not intrude in the middle of administrative proceedings.
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