By Matt Ward
In what both sides are calling a victory, a District Court judge this week dismissed a civil complaint against the sheriff’s department over its failure to have a written policy in place outlining how process servers and the public can serve subpoenas on sheriff’s deputies.
Judge Robert Lane dismissed the case brought by a former Nye County undersheriff citing the plaintiff’s lack of standing to bring a case. The judge’s ruling noted, though, that despite dismissing the case, his hopes for a resolution to the problem of subpoenaing peace officers remain.
At issue was the fact that the county sheriff’s office had an unwritten policy in place that seemed to run counter to the law. Simultaneous with Lane’s ruling, that unwritten policy was spelled out on paper and posted in the lobby of the sheriff’s Basin Avenue headquarters, thus somewhat making the issue a moot point.
Mark Zane, the man who brought the complaint against the NCSO, says at least his effort bore fruit, despite the dismissal.
Zane is owner of Zane Investigations, a private firm that does investigative work for defense attorneys. Zane is also a licensed process server. He filed the court complaint after attempts to get the sheriff’s office to serve subpoenas on deputies failed. Zane said he was given arbitrary excuses why his subpoenas could not be served and was told to serve them in the same manner the office performs civil subpoena service, which is spelled out in state law. Serving subpoenas on peace officers to testify in a criminal matter is not spelled out in state law in the same manner, but instead the law clearly says that process servers can serve the law enforcement agency for which the police officer subpoenaed works in lieu of serving the peace officer in person.
In order to do that, however, one must pay a $15 fee and send the subpoena to Tonopah to get processed and returned for service in Pahrump or at any of the NCSO substations around the county. The policy only impacts non-Nye government entities. The district attorney’s office can serve subpoenas on peace officers without paying any fees or sending them to Tonopah. However, the county’s contracted public defender’s office is required to pay the fees and send the subpoenas to Tonopah.
Asked to comment about the ruling, Zane said he has mixed feelings.
“It’s better than what we had, that’s for sure. I have a question as to whether or not some of these people can afford $15, but that’s neither here nor there. The only thing I was trying to get was a policy that the statute required, so it put everybody on notice on how to go about getting this done. From that perspective, you know, it did something apparently,” he said.
Zane says he believes NCSO brass were merely unaware that the law had changed, that a concrete policy was necessary for serving peace officers separately from the manner in which civilians are served.
“I don’t know whether or not they just didn’t know that the law had changed. That would be my guess, is that they were surprised when we showed up with the subpoenas and attempted to serve them. From my very first discussion at the window at sheriff’s headquarters , it was like ‘we follow the law and here’s the law.’ Well, I said, ‘there’s the law but here’s the exception.’ It seemed to surprise people. When I contacted Capt. Bill Becht about it, he honestly said he wasn’t aware of the change in the law,” Zane said.
Assistant Sheriff Rick Marshall disputes that assessment. He wrote and posted the newly written policy. He said he believes Zane’s suit to be frivolous in the first place, particularly since the unwritten policy was in place even when Zane worked at the department.
“That’s what this whole case was about that Mr. Zane brought; it was frivolous. … The issue was that Mark Zane wanted us to do his work for him. And we are prohibited by law from giving out the addresses of our officers. The statute also did not require us to have a written policy. As you’ve seen in some statutes, they say you will reduce them to writing, but this one did not. It’s been the pattern and practice going back to when Mark Zane was the undersheriff here,” he said.
It’s true that the statute in question doesn’t require a written policy. However, the county’s civil attorney in the matter, Deputy District Attorney Tim Sutton, said having the policy in writing is clearly better for all involved.
During a District Court hearing on March 19, Lane said the NCSO’s lack of a written policy had for years been a thorny issue in some cases in front of him. Marshall disputed that sentiment as well, however. He wondered why the judge had never made his concerns known to the NCSO brass before now.
“As for certain comments Judge Lane made, it’s unfortunate that he made those comments, that dealing with people that he had heard are running into problems at the sheriff’s office getting subpoenas served. I went back and spoke to everybody in the front office up here and asked them specifically about the comments related to Judge Lane, and they said ‘no,’ people who come to our office and want to know about serving subpoenas, we tell them they need to send it to Tonopah,” Marshall said, “They dispute what Judge Lane said. If Judge Lane had taken the time to communicate with us, we would have informed him, thank you for bringing it to our attention, we would have re-emphasized our policy to the front office and we wouldn’t have had those comments that he made.”
Todd Leventhal, a Las Vegas attorney who represented Zane in court, said that despite the dismissal, he felt that Zane had proven his case. He also said that there seemed to be more that needed to be resolved with the NCSO policy than could be merely satisfied by putting the former unwritten practices to paper.
“They never had a policy before. They had a civil policy, but they never had a criminal policy before,” he said. “I’m happy that the action resulted in the sheriff’s office finally doing their legal obligation. It seems that for everybody but lawyers, it’s a shame this had to go to court for compliance with what the legislature instructed the law to be. The position that the sheriff had, the policy in place was clearly a fiction borne out by Judge Lane’s comments that the lack of a policy had burdened the courts for years. If Mr. Zane would like to take additional actions, then I’m ready to go with it.”
Sutton said he came to the case too late to uncover whether in fact the sheriff’s department, when asked about their policy for serving deputies, did merely parrot the state law for civil service procedures. Regardless, the policy is written now and the judge’s ruling seems to satisfy all sides.
“Our position was that there has been a policy in place and it sounds like there was some discrepancy, hopefully that’s cleared up now,” he said. “If you can have a court judgment that satisfies both parties, that’s a rare thing, and so, I can say that we are happy with it and, I guess I can’t speak for Zane, but hopefully, it seems like that’s what he wanted in the first place.”