132 Nev., Advance Opinion 15 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

NEVADA DEPARTMENT OF PUBLIC 

SAFETY, DIVISION OF PAROLE AND 

PROBATION, 

Appellant, 

vs. 

KENNETH SCOTT COLEY, A/K/A 

KING COLEY, 

Respondent. 

No. 67864 

FOILED 

MAR 0 3 2016 

Appeal from a district court order granting a writ of 

mandamus. Eighth Judicial District Court, Clark County; Kathleen E. 

Delaney, Judge. 

Reversed. 

Adam Paul Laxalt, Attorney General, and Adam D. Honey, Deputy 

Attorney General, Carson City, 

for Appellant. 

Gentile, Cristalli, Miller, Armeni & Savarese and Paola M. Armeni and 

Colleen E. McCarty, Las Vegas, 

for Respondent. 

BEFORE HARDESTY, SAITTA and PICKERING, JJ. 

OPINION 

By the Court, PICKERING, J.: 

"In every instance, the power to adopt regulations to carry out 

a particular function is limited by the terms of the grant of authority 

pursuant to which the function was assigned." NRS 233B.040(1). Here, 

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we are asked to decide whether mandamus relief is proper to compel the 

Division of Parole and Probation to accept an application for a change in 

probation discharge status under a set of regulations adopted pursuant to 

a statute that sunsetted in 2008. We conclude that the regulations upon 

which respondent Kenneth Coley relies are invalid, rendering mandamus 

relief inappropriate. Accordingly, we reverse the district court's order 

granting Coley's writ of mandamus. 

I. 

A. 

In 2005, the Legislature enacted Section 16 of Senate Bill 445 

as a three-year experiment to determine whether allowing "individuals 

who were dishonorably discharged [from probation] because of 

nonpayment of restitution, or nonpayment of their supervisory fees," to 

apply for a change in their discharge status to "honorable," as long as they 

made a good effort to pay restitution, would help make victims whole 

again, and pay down the large amount of outstanding restitution. Hearing 

on S.B. 445 Before the Assembly Judiciary Comm., 73d Leg. (Nev., 

May 12, 2005). Section 16 provided three criteria that render an 

individual ineligible to apply for a change in discharge status: 

(a) The fact that he committed a new crime, 

other than a violation of a traffic law for which he 

was issued a citation, during the period of his 

probation or parole; 

(b) The fact that his whereabouts were 

unknown at the time of his discharge from 

probation or parole; or 

(c) Any incident involving his commission of 

a violent act or an act that threatened public 

safety during the period of his probation or parole. 

2005 Nev. Stat., ch. 476, § 16(2), at 2360. 

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Section 16 directed the Division of Parole and Probation 

(Division) to adopt implementing regulations: 

[A] person who was dishonorably discharged from 

probation or parole before the effective date of this 

section, until July 1, 2008, may apply to the 

Division of Parole and Probation of the 

Department of Public Safety, in accordance with 

the regulations adopted by the Division pursuant 

to the provisions of this section . . . . 

2005 Nev. Stat., ch. 476, § 16(1), at 2360 (emphasis added). On May 4, 

2006, the Division adopted regulations for a "Change of Dishonorable 

Discharge to Honorable Discharge." See NAC 213.720 et seq. The 

regulations specifically incorporate Section 16, not only in the section 

titles, but also in the text. For example, NAC 213.730 is titled "Applicant' 

defined. (§ 16 of ch. 476, Stats. 2005)." Further, the text of NAC 213.730 

defines an applicant as "a person who submits an application to the 

Division to change his or her dishonorable discharge from probation or 

parole to an honorable discharge from probation or parole in accordance 

with the provisions of section 16 of chapter 476, Statutes of Nevada 2005." 

(Emphasis added.) 

As a three-year experiment, Section 16 included a "sunset" 

clause that rendered Section 16 ineffective after July 1, 2008. Although 

Section 16 included sunsetting language, the regulations adopted to 

implement Section 16, NAC 213.720 et seq., do not. 

At the end of the three years, Section 16, subsection 5, 

required the Division to send a written report to the Legislative Counsel 

Bureau including statistics about the program and whether the Division 

recommends that the program continue. 2005 Nev. Stat., ch. 476, § 16(5), 

at 2361. On December 8, 2008, the Division sent its written report, 

detailing the number of applications received, granted, denied, the reasons 

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why, and its recommendation. Of the nine applications completed, only 

three individuals received a change in discharge. The other six 

individuals were denied a change in discharge because "the Dishonorable 

Discharges resulted from factors in addition to non-payment of Restitution 

and/or Supervision fees, which were not addressed in the regulation 

change." Nevertheless, the Division concluded: "This regulation, with the 

possibility of receiving additional restitution due to victims or fees due to 

the Division, should be continued." Despite the Division's 

recommendation that Section 16 continue, the Legislature never codified 

Section 16 into the Nevada Revised Statutes. 

B. 

In 2014, respondent Kenneth Coley applied to the Division for 

a change in his probation discharge status. In accordance with the 

instructions and application given by the Division, which referenced 

Section 16, Coley submitted his application and financial plan to satisfy 

his outstanding fees owed to the Division. However, the Division denied 

Coley's request because of his failure to complete community service, 

which was the same reason for his original dishonorable discharge. After 

denying Coley's application, the Division changed its website instructions 

to include that a person is ineligible if he or she fails to satisfy a condition 

of their probation, such as community service. Coley confronted the 

Division about this change, and it replied that Section 16 is no longer 

applicable law. The Division expressed that only offenders who were 

dishonorably discharged for unpaid supervision fees and restitution could 

qualify for a change of status. 

Thereafter, Coley filed a petition for writ of mandamus 

seeking to compel the Division to comply with Section 16 and grant his 

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application for a request of change of probation discharge status. The 

Division maintained that Section 16 expired in 2008. Coley argued that 

the Division acted arbitrarily and capriciously in denying his application 

because the Division granted two other applications after 2008. 1The 

district court agreed with Coley and granted his petition, ordering the 

Division to proceed with Coley's application, allow him to make payments 

toward his fees, and, if he satisfies his financial obligations, to recommend 

a change in his discharge status to honorable. 

H. 

District courts have the "power to issue writs of Mandamus." 

Nev. Const. art. 6, § 6(1). "A writ of mandamus is available to compel the 

performance of an act that the law requires . . . or to control an arbitrary 

or capricious exercise of discretion." Int'l Game Tech., Inc. v. Second 

Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see NRS 

34.160. "Mandamus will not lie to control discretionary action, unless 

discretion is manifestly abused or is exercised arbitrarily or capriciously." 

Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 

P.2d 534, 536 (1981) (citation omitted). An exercise of discretion is 

considered arbitrary if it is "founded on prejudice or preference rather 

than on reason" and capricious if it is "contrary to the evidence or 

established rules of law." State v. Eighth Judicial Dist. Court 

(Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (quoting 

Arbitrary and Capricious, Black's Law Dictionary (9th ed. 2009)). "The 

burden of proof to show the capriciousness is on the applicant." Gragson v. 

'The Division admitted to granting two applications after Coley's 

application. However, "their only short coming in their dishonorable 

discharge was lack of restitution." 

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Toco, 90 Nev. 131, 133, 520 P.2d 616, 617 (1974). Generally, this court 

reviews a district court's decision regarding a petition for a writ of 

mandamus for an abuse of discretion. Veil v. Bennett, 131 Nev., Adv, Op. 

22, 348 P.3d 684, 686 (2015). To the extent the petition depends on 

statutory interpretation, though, our review is de novo. State v. Barren, 

128 Nev., Adv. Op. 31, 279 P.3d 182, 184 (2012). 

Here, the district court found the Division's denial of Coley's 

application arbitrary and capricious because it continued to process 

applications after July 1, 2008, yet denied Coley's "application on the basis 

of disqualifying factors not found in Section 16 and NAC 213.720—MAC 

213.790." Procedurally, the district court erred in granting Coley 

mandamus relief because the law does not require the Division to accept 

applications. Section 16 and NAC 213.720 et seq. are no longer valid law 

because Section 16, the statutory authority upon which the regulations 

were premised, sunsetted in 2008. See 1A Norman J. Singer & J.D. 

Shamble Singer, Statutes & Statutory Constr. § 31:2 (7th ed. 2009) ("The 

legislative act is the charter of the administrative agency and 

administrative action beyond the authority conferred by the statute is 

ultra vires. . . . Regulations which are not in harmony with the plain 

language of the underlying statute cannot serve as a guide in statutory 

construction."); see also MRS 233B.040(1) ("In every instance, the power to 

adopt regulations to carry out a particular function is limited by the tei ins 

of the grant of authority pursuant to which the function was assigned."). 

In this case, MAC 213.720 et seq. derive from and depend on 

Section 16, as demonstrated by the citation to Section 16 in the title of 

each code section. See MRS 233B.040(2) ("Every regulation adopted by the 

agency must include: (a) A citation of the authority pursuant to which it, 

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or any part of it, was adopted. . . ."). Because Section 16 sunsetted in 

2008, the Division did not have the authority to continue to accept 

applications pursuant to NAC 213.720 et seq. after that date. 2 

Nevertheless, the Division mistakenly accepted a total of three 

applications post-2008—Coley's application and two other applications, 

which were granted. 

We must decide, therefore, whether the Division's mistake in 

processing two applications under invalid regulations can sustain the 

district court's holding that the Division acted arbitrarily and capriciously 

in denying Coley's application. We conclude it cannot and that the 

Division did not abuse its discretion because no authority existed that 

granted the Division any discretion. The Division's processing of the 

applications post-2008 was ultra vires. Mandamus relief is, therefore, 

inappropriate because it would require thefl Division to process an 

application that it lacks authority to process. Even adopting the district 

court's view, however, that the Division exercised discretion when it 

continued to process applications, the district court erred because the 

Division did not act arbitrarily or capriciously. 

In resolving the petition below, the district court committed 

two further errors. By negative implication, the district court incorrectly 

interpreted Section 16's disqualifying factors to mean that because Coley's 

discharge was not based on one of the disqualifying factors, he was 

automatically eligible for a change in discharge. This interpretation 

frustrates the legislative purpose behind Section 16, which was "for 

2Moreover, NRS Chapter 176A does not provide legal authority for 

changing one's discharge status. Rather, it specifies the criteria for 

receiving an honorable discharge. See NRS 176A.850; infra note 3. 

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individuals who were dishonorably discharged because of nonpayment of 

restitution, or nonpayment of their supervisory fees." Hearing on S.B. 445 

Before the Assembly Judiciary Comm., 73d Leg. (Nev., May 12, 2005). 

Section 16 was not created as a mechanism to allow individuals to avoid 

court-imposed probation obligations, other than restitution or payment of 

fees, such as community service or drug court. 

Second, the Division did not act arbitrarily or capriciously in 

denying Coley's application. Even before the sunset provision of Section 

16 went into effect, the Division consistently denied applicants whose 

"Dishonorable Discharges resulted from factors in addition to nonpayment of Restitution and/or Supervision fees." Moreover, the district 

court relied heavily on the Division's admission that it granted two 

applications after 2008 but refused to grant Coley's application. However, 

the Division distinguished those applications at the hearing, stating that 

those dishonorable discharges only resulted from failure to pay restitution, 

not the failure to complete any other probation obligations. Therefore, the 

Division has consistently only granted applications if the dishonorable 

discharge resulted from nonpayment of restitution or supervision fees and 

has consistently denied applications if the dishonorable discharge resulted 

from other factors. 

This consistent treatment hardly rises to the level of being 

"founded on prejudice or preference rather than on reason" or "contrary to 

the evidence or established rules of law." Armstrong, 127 Nev. at 931-32, 

267 P.3d at 780 (quotations and citations omitted). Rather, the denial of 

Coley's application was based on reason—Coley's dishonorable discharge 

resulted from factors in addition to the failure to pay restitution or 

supervision fees. This reason is not contrary to established rules of law, as 

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Section 16 does not state that if a dishonorable discharge was not based on 

one of the disqualifying factors, it must be granted. 3Further, the 

Division's denial of Coley's application was not contrary to established 

rules of law because the law under which the Division had authority to 

process the applications sunsetted in 2008. 

As the burden of proof is on Coley to establish that the 

Division acted arbitrarily or capriciously, Gragson, 90 Nev. at 133, 520 

P.2d at 617, Coley has failed to meet that burden for extraordinary relief. 

Despite the procedural barrier to mandamus relief, Coley has not shown 

that the Division was granting applications for individuals who failed to 

satisfy probation obligations, such as community service. Rather, the 

3This interpretation is consistent with NRS 176A.850(1), which lists 

when an individual may be granted an honorable discharge from 

probation: 

1. A person who: 

(a) Has fulfilled the conditions of probation 

for the entire period thereof; 

(b) Is recommended for earlier discharge by 

the Division; or 

(c) Has demonstrated fitness for honorable 

discharge but because of economic hardship, 

verified by the Division, has been unable to make 

restitution as ordered by the court, 

may be granted an honorable discharge from 

probation by order of the court. 

(Emphases added.) NRS 176A.850 demonstrates that the Legislature 

intended individuals to satisfy their probation obligations to be eligible for 

an honorable discharge. See also MRS 176A.870(3) (stating that an 

individual who "failed to qualify for an honorable discharge as provided in 

NRS 176A.850 is not eligible for an honorable discharge and must be given 

a dishonorable discharge"). 

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record before this court clearly evinces that the Division consistently 

denied such applications. Thus, the district court erred in concluding that 

the Division acted arbitrarily and capriciously, such that mandamus relief 

was necessary. We, therefore, reverse the district court's grant of 

mandamus relief. 

We concur: 

Hardesty 

Saitta 

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