Salaiscooper v. District Court

34 P.3d 509 (Nev. 2001)

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Nature of the Case

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Facts

On February 29, 2000, Megan Joy Hayhurst, who was charged with soliciting prostitution, filed a motion for discovery requesting the written policy of the Clark County District Attorney’s Office concerning prosecution of solicitation of prostitution cases. Hayhurst contended that the policy violated the Equal Protection Clauses of the United States and Nevada Constitutions because it resulted in impermissible gender discrimination. Hayhurst was represented by attorney William B. Terry, who was also counsel of record for numerous other defendants charged with solicitation of prostitution in the various departments of the Las Vegas Justice Court, wherein the same argument was raised. Police were revoking adult entertainment employees' work cards need to work in the adult entertainment industry based merely on an arrest for solicitation of prostitution. The ACLU contended that revoking a work card needed to work in the entertainment industry without an underlying conviction violated due process. In response to the ACLU’s objection, the district attorney implemented a no-plea-bargain policy that prohibited his deputies from entering into a plea agreement with a defendant charged with solicitation of prostitution allowing a plea to a lesser charge. The plain language of the policy prohibiting plea bargains excepted first-time male defendants. The justice court was concerned with the gender-specific language used in the policy, it ordered an evidentiary hearing where both sides could present evidence to support or refute a specific finding of discriminatory purpose. As a result of the court’s order, Mr. Terry and the State agreed that they would randomly select a solicitation of prostitution case in which to conduct the hearing out of the fifty-six pending in the various departments of the Las Vegas Justice Court. The Salaiscooper (D) case was randomly selected, and Justice of the Peace Jennifer Togliatti presided over the hearing. Dr. Roxanne Clark Murphy, a clinical psychologist and the Program Coordinator for the First Offender Program for Men in Las Vegas testified that she developed the First Offender Program in collaboration with Metro and that it boasted an extremely low recidivism rate of less than one percent. Murphy explained that the diversionary program was designed for buyers of sex that are statistically almost always male. Murphy also described the requisite for entrance into the program was that a defendant must be a first-time offender charged with soliciting a prostitute. Murphy testified that the vast majority of sellers of sex are females. Murphy also stated that it would take a minimum of a year to successfully rehabilitate a seller of sex. Murphy explained that, in order for a diversion program to be an effective deterrent, it would need to be a residential program that would protect women from their pimps, teach them job skills, and provide substance abuse and psychological counseling. Murphy further explained that more effort is required to rehabilitate and deter sex sellers than buyers because many prostitutes have been sexually abused, selling sex since the age of 13 to 14, disassociated from their actions through the use of drugs and alcohol, and/or controlled by a violent pimp or procurer. Officer Davis testified that the program was designed for buyers of sex. Davis also confirmed that he told a Las Vegas newspaper that the impetus of the policy was Metro’s need for an underlying solicitation of prostitution conviction in order to revoke an adult entertainment industry employee’s work card. With the seven justices sitting en banc, the Justice Court unanimously found that the policy did not discriminate on the basis of gender and that its distinction based on buyers of sex and sellers of sex was constitutionally permissible. A memo clarifying that the First Offender Program for Men was available only to buyers of sex regardless of whether they were male or female was distributed to police. Accordingly, under the clarified policy, if a female buyer of sex was charged with solicitation of prostitution, she, like a male buyer of sex, would have the option of attending the First Offender Program, thereby avoiding a solicitation conviction. D appealed to the district court, which concluded that the decision of the justice court was supported by substantial evidence and that the policy of the Clark County District Attorney’s Office was constitutional. D then filed the instant petition for a writ of certiorari, or in the alternative, a writ of prohibition or mandamus, contending that both the justice court and the district court erred in concluding that the no-plea policy’s distinction based on buyers and sellers of sex was constitutionally permissible.