CourtListener 9469898

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140 Nev., Advance Opinion 5
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JAMIE MARIE CHITTENDEN, No. 85383-COA
Appellant.
vs.
JUSTICE COURT OF PAHRUMP
NLED
TOWNSHIP,
JAN 25 )_02:p
Respondent.
ELI TM A. ;- 3RO
CLEP SEME -• R1
8Y
HIEF DEPUT1 CLERK

Appeal from a district court order denying a petition for a writ
of mandamus. Fifth Judicial District Court, Nye County; Kimberly A.
Wanker, Judge.
Affirmed.

The Law Firm of Nathan L. Gent, PLLC, and Nathan L. Gent, Pahrump,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Brian Kunzi, District
Attorney, and Bradley J. Richardson, Deputy District Attorney, Nye
County,
for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, WESTBROOK, J.:
In this decision, we address NRS 171.196(2)'s requirement that
a preliminary hearing be set within 15 days of a criminal defendant's initial

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appearance on a felony or gross misdemeanor charge unless good cause
exists for the delay.' We conclude that when deciding whether good cause
exists, the justice court must balance the defendant's constitutional right to
conditional pretrial liberty against the interests of the State and the needs
of the court. Further, the court must make findings on the record to justify
any delay of the preliminary hearing and undertake efforts to ensure that
the hearing is held as soon as practicable.
In this case, appellant Jamie Marie Chittenden filed a petition
for a writ of mandamus in the district court seeking dismissal of the charges
against her because the justice court scheduled her preliminary hearing 76
days after her initial appearance, while she remained in custody. The
district court denied her petition because it found that good cause existed
for this extraordinary delay. Although we conclude that the district court
abused its discretion when it found good cause for the extreme delay in this
case, we nevertheless affirm the district court's denial of Chittenden's
petition for extraordinary writ relief on other grounds.
PROCEDURAL AND FACTUAL HISTORY
In May 2022, a criminal complaint was filed against Chittenden
and four other codefendants, and a warrant for Chittenden's arrest was
issued. She was eventually arrested, and on July 28, 2022, Chittenden was
brought to appear before the Pahrurnp Justice Court. The complaint alleged
a total of sixteen counts against all codefendants, with five of those counts
against Chittenden. Specifically, she was charged with one count of forgery,
three counts of using another person's identifying information to harm or
impersonate another person, and one count of conspiracy.

We use the term preliminary hearing synonymously with
1
preliminary examination" as referenced in NRS 171.196(2).
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Chittenden, who appeared in custody for her initial appearance,
requested an own recognizance release or reduction in bail, which was set

in the warrant at $70,000. After the justice court denied these requests,
Chittenden invoked her right to a preliminary hearing within 15 days.
However, the justice of the peace set Chittenden's preliminary hearing for
October 12, 2022-76 days later.
Chittenden objected generally to the hearing setting as being
outside of the 15-day window but did not request any specific form of relief.
The justice court indicated that the October 12 date was "the soonest that
we could put on a case of this magnitude, with this many [co]defendants"
because otherwise,
this case is all gonna be bifurcated and you're gonna
have to have four separate or different judges, at
least, to hear it. Because if I hear her case, then I
can't hear any of the other ones, so that would have
to go to another judge. And whatever case he hears,
then he can't hear any of the other ones, so that
would have to go to another judge. Logistically, I
don't think that we can do it before then, because of
those problems that would arise if we tried to
bifurcate this case. And I'm not sure that the
[district attorney's] office wants to bifurcate this
case and have to pay four or five different times for
witnesses to appear.
The State opposed the bifurcation, and without further discussion, the
justice court left the preliminary hearing date unchanged.
Approximately one month after her initial appearance,
Chittenden petitioned the district court for a writ of mandamus, arguing
that the justice court scheduled her preliminary hearing beyond 15 days

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without good cause in violation of NRS 171.196(2).2 The writ petition
requested that the district court compel the justice court to "follow the law
as set forth by NRS 171.196" and to dismiss Chittenden's case. Without
requiring a response from the State or hearing any argument from the
parties, the district court denied the petition. In its order, the district court
cited Shelton v. Lamb, 85 Nev. 618, 460 P.2d 156 (1969), and noted that the
court's calendar, pendency of other cases, public expense, health of the
judge, and convenience of the court are good causes for a continuance. Then,
the court summarily concluded that "[i]n this case, the Justice of the Peace
was within the parameters of the law to continue [Chittenden's]
preliminary hearing to October 12, 2022."
On the day of her scheduled preliminary hearing, out of the five
codefendants charged in the case, only Chittenden appeared in the justice
court. She then unconditionally waived her preliminary hearing and agreed
to plead guilty to one count of forgery—a category D felony—and to pay
$2,950 in restitution. The parties also expressly stipulated on the record
that Chittenden had preserved for appellate review the issues raised in her
mandamus petition. She was then released on her own recognizance.
Chittenden now appeals from the district court's order denying mandamus
relief.
ANALYSIS
At the outset, we note that this case presents an unusual
procedural history. After the district court denied Chittenden's pretrial

2 NRS 171.196(2) provides that
if a defendant does not waive their
right to a preliminary hearing, "the magistrate shall hear the evidence
within 15 days, unless for good cause shown the magistrate extends such
time."
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petition for a writ of mandamus, she unconditionally waived her
preliminary hearing pursuant to negotiations but expressly reserved her
right to appeal the issue in her writ regarding the delay in her preliminary
hearing. Before her sentencing hearing and before any judgment of
conviction was entered, Chittenden filed a timely notice of appeal that
challenged only the district court's order denying her writ petition. Neither
party challenges appellate jurisdiction in this case, but before we can
address the merits of Chittenden's appeal, we must first determine if the
matter is properly before us. See Mazzan v. State, 109 Nev. 1067, 1075, 863
P.2d 1035, 1040 (1993) ("Where no court rule or statute provides for an
appeal, no right to appeal exists.").
This court has jurisdiction over Chittenden's appeal, and the issue is capable
of repetition, yet evading review
We first conclude that this court has jurisdiction over
Chittenden's appeal from the district court's order denying mandamus. See
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665-66, 856 P.2d 241. 246
(1993) (providing that an appeal from a district court order denying a
pretrial petition for a writ of mandamus is the proper remedy). NRS
2.090(2) provides that the Nevada Supreme Court "has jurisdiction to
review upon appeal . . . an order granting or refusing to grant an injunction
or rnandamus in the case provided for by law." NRS 177.015(3) states that
"[t]he defendant only may appeal frorn a final judgment or verdict in a
criminal case," and an order of the district court denying a writ of
rnandamus is a final judgment within the rneaning of NRS 177.015(3).
Ashokan, 109 Nev. at 665, 856 P.2d at 246; see also Round Hill Gen.
Intprovernent Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)
("When disputed factual issues are critical in demonstrating the propriety
of a writ of mandamus, the writ should be sought in the district court, with
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appeal from an adverse judgment to this court." (citing NRS 34.160, NRS
34.220, and NRS 34.310)). Therefore, both NRS 2.090(2) and NRS
177.015(3) confer upon this court appellate jurisdiction over the district
court's order denying Chittenden's petition for a writ of mandamus.
Ashokan, 109 Nev. at 666, 856 P.2d at 246; Nev. Const. art. vI, § 4.
However, Chittenden's appeal challenges the delay of her
preliminary hearing without good cause, and a violation of NRS 171.196(2)
would have resulted in her unlawful confinement. See Shelton, 85 Nev. at
619, 460 P.2d at 157. We note that Chittenden's unconditional waiver of
her preliminary hearing and subsequent plea rendered any pretrial
detention issue moot. See generally Valdez-Jimenez v. Eighth Jud. Dist. Ct..
136 Nev. 155, 156, 460 P.3d 976, 980 (2020); see also Sheriff, Washoe Cnty.
v. Myles, 99 Nev. 817, 818, 672 P.2d 639, 639 (1983) (agreeing with the
petitioner that "any illegality in the [defendant's] detention was moot upon
the finding of probable cause and bind-over at the preliminary hearing").
Further, insofar as Chittenden sought writ relief directing the justice court
to "follow the law" and hold her preliminary hearing within 15 days, this
relief is no longer available.
Nonetheless, where an appeal is moot, this court may still
consider it "if it involves a matter of widespread importance that is capable
of repetition, yet evading review." Personhood Neu. v. Bristol, 126 Nev. 599,
602, 245 P.3d 572, 574 (2010). The party seeking to overcome mootness
must show "that (1) the duration of the challenged action is relatively short,
(2) there is a likelihood that a similar issue will arise in the future, and
(3) the matter is important." Bisch v. Las Vegas Metro. Police Dep't, 129
Nev. 328, 334-35, 302 P.3d 1108, 1113 (2013); see also Valdez-Jimenez, 136
Nev. at 158, 460 P.3d at 982.

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The parties did not address mootness in their briefing.
However, IN ecause mootness is an element of justiciability and raises a
question as to our jurisdiction, we consider the matter sua sponte." Aguirre
u. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986). In doing so, we
conclude that, although Chittenden's appeal is moot, the issue presented
here is within the exception to the mootness doctrine.
As to the first factor, the 15-day window provided in NRS
171.196(2) is short in duration, such that a writ petition challenging an
allegedly unlawful delay is unlikely to be heard before that window expires.
Further, a challenge to an unlawful delay will become moot whenever a case
is resolved by dismissal, negotiation, or bind-over. See Gerstein v. Pugh,
420 U.S. 103, 110 n.11 (1975) ("Pretrial detention is by nature temporary,
and it is most unlikely that any given individual could have his
constitutional claim decided on appeal before he is either released or
convicted.").
As to the second factor, we note that there were 32,787 new
felony and gross misdemeanor cases filed in Nevada's justice courts during
the 2023 fiscal year. 2023 Nev. Sup. Ct. Ann. Rep. app. tbl. B5-1. Given
that all criminal defendants charged by criminal complaint with a gross
misdemeanor or felony are statutorily entitled to a preliminary hearing,
there is a substantial likelihood that a similar issue will arise in the future
based on the volume of cases alone. See NRS 171.196(1).
Finally, as to the third factor, the issue in this case is of
widespread importance. Nevada's appellate courts have not addressed the
subject of good cause to delay an initial preliminary hearing setting beyond
15 days since the 1970s. See Stevenson v. Sheriff, Clark Cnty., 92 Nev. 535,
536, 554 P.2d 255, 255 (1976). Our analysis of this issue will "affect many

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arrestees" and involves the defendant's constitutional right to conditional
pretrial liberty. Valdez-Jimenez, 136 Nev. at 160, 460 P.3d at 983; Johnston
v. Eighth Jud. Dist. Ct., 138 Nev., Adv. Op. 67, 518 P.3d 94, 102 (2022).
Further, deciding this issue "would provide guidance to judges" who are
tasked with determining a defendant's custody status and scheduling
critical hearings. Valdez-Jimenez, 136 Nev. at 161, 460 P.3d at 983.
Therefore, because the issue presented in Chittenden's appeal is capable of
repetition, yet evading review, we choose to consider her issue on the merits
notwithstanding Chittenden's unconditional waiver of her preliminary
hearing. We now turn to the merits of Chittenden's claim.
The district court abused it.s discretion in finding good cause for Chittenden's
preliminary hearing delay
Chittenden argues that the district court erroneously denied
her petition for a writ of mandamus because the justice court set her
preliminary hearing beyond 15 days of her initial appearance without good
cause in violation of NRS 171.196(2). The State responds that the district
court correctly denied her writ petition because the justice court had good
cause to schedule her preliminary hearing 76 days after her initial
appearance due to the nature of the case and the court's calendar.
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station, NRS 34.160, or to control a manifest abuse or arbitrary or
capricious exercise of discretion, Round Hill, 97 Nev. at 603-04, 637 P.2d at
536. Chittenden argued in her writ petition that the justice court
manifestly abused its discretion when it "arbitrarily and capriciously" set
her preliminary hearing 76 days after her initial appearance without good
cause to do so in violation of NRS 171.196(2). In its order denying the writ,
the district court recited several of the potential grounds for good cause
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listed in Shelton and then summarily concluded that good cause existed in
this case, without explicitly identifying the good cause that justified the
extraordinarily lengthy delay.
We review an order denying a request for mandamus relief for
an abuse of discretion. Roller v. State, 122 Nev. 223, 226, 130 P.3d 653, 655
(2006). A justice court's assessment of good cause under NRS 171.196(2) is
likewise reviewed for an abuse of discretion. See In re Search Warrants
(Little Darlings), 139 Nev., Adv. Op. 23, 535 P.3d 673, 678 (Ct. App. 2023)
(providing that Nevada's appellate courts have typically held that "good
cause" determinations are within the court's discretion). However, in this
case, even under a deferential standard of review, we conclude that the
district court abused its discretion in finding good cause for the delay of
Chittenden's preliminary hearing.
In Shelton, the Nevada Supreme Court addressed consolidated
appeals by two appellants who alleged that the justice court violated their
statutory right to a preliminary hearing within 15 days under NRS
171.196(2) by setting their hearings 17 and 18 days after the appellants'
respective initial appearances. 85 Nev. at 619-20, 460 P.2d at 157-58. In
examining whether good cause existed to delay the preliminary hearings,
the supreme court provided several possible grounds that could constitute
good cause, including the "condition of [the court's] calendar, the pendency
of other cases, public expense, and the convenience or health of judge, court
officers, and jurors." Id. at 620, 460 P.2d at 157. The court then concluded
that good cause existed for the minor delays in the appellants' preliminary
hearings. Id. Similarly, in Stevenson, 92 Nev. at 536, 554 P.2d at 255, the
supreme court found there was good cause to set the appellant's preliminary
hearing 19 days after his initial appearance and extended the potential

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grounds for good cause under NRS 171.196(2) to include overcrowded court
calendars.
Here, in contrast to the minor delays in Shelton and Stevenson,
the justice court set Chittenden's preliminary hearing 76 days after her
initial appearance in justice court, or 61 days beyond the statutory
threshold. This delay amounted to more than four times the 15-day window
provided for in NRS 171.196(2).
To justify the extensive delay in this case, the justice court
identified two grounds that it believed constituted good cause: (1) that
bifurcating the five codefendants into five separate preliminary hearings
would require five different justices of the peace to preside over the hearings
and (2) that having five separate preliminary hearings would cause undue
financial hardship on the State because it would "have to pay four or five
different times for witnesses to appear." On their face, these reasons
initially appear to comport with Shelton and Stevenson, which permit
consideration of the justice court's calendar and public expense. However,
these proffered good cause reasons for the delay were premised on mistakes
of law and fact and were unsupported by the record. In addition, the justice
court failed to consider Chittenden's constitutional interest in conditional
pretrial liberty when it scheduled her preliminary hearing 76 days after her
initial appearance, during which time Chittenden remained in custody after
her request for a release or reduction in bail was denied. Therefore, under
the circumstances of this case, the district court abused its discretion when
it found that the justice court had good cause to delay Chittenden's
preliminary hearing.

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The justice court's good cause determination was based on mistakes of
law and fact
The justice court's first given reason, that bifurcating
Chittenden's preliminary hearing would require separate preliminary
hearings for each of the five codefendants, with a different justice of the
peace to preside over each hearing, was legally incorrect. As a matter of
law, there was no requirement that the justice court bifurcate all five
codefendants into five separate preliminary hearings. For example, the
justice court could have held two or more separate hearings, with one for
the defendants who invoked their right to a speedy hearing and one for
those who waived that right.
Further, even if the justice court did hold five separate
preliminary hearings, presiding over one would not have required the
justice of the peace to disqualify himself from presiding over all others. "[A]
judge has a general duty to sit, unless a judicial canon, statute, or rule
requires the judge's disqualification." Millen v. Eighth Jud. Dist. Ct., 122
Nev. 1245, 1253, 148 P.3d 694, 700 (2006). This court also expects "judges,
including every one of our limited jurisdiction judges in the State of Nevada,
to disregard improper, inadmissible, or impalpable evidence and base their
findings and decisions only on admissible evidence." Canarelli v. Eighth
Jud. Dist. Ct., 138 Nev. 104, 109, 506 P.3d 334, 339 (2022); see also State,
Dep't of Highways v. Campbell, 80 Nev. 23, 33, 388 P.2d 733, 738 (1964)
("[W]here inadmissible evidence has been received by the court, sitting
without a jury, and there is other substantial evidence upon which the court
based its findings, the court will be presumed to have disregarded the
improper evidence."); Randell v. State, 109 Nev. 5, 7, 846 P.2d 278, 280
(1993) (stating that judges "spend much of their professional lives
separating the wheat from the chaff' (internal quotation marks omitted)).
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Generally, "what a judge learns in his official capacity does not
result in disqualification." Kirksey v. State, 112 Nev. 980, 1007, 923 P.2d
1102, 1119 (1996). To be disqualified, it must be shown that a bias stems
"from an extrajudicial source and result[s] in an opinion on the merits on
some basis other than what the judge learned from participation in the
case," Whitehead v. Nev. Comm'n on Jucl. Discipline, 110 Nev. 380, 428 n.45,
873 P.2d 946, 976 n.45 (1994), or that the judge learns something during
the course of performing judicial duties and "forms an opinion that displays
a deep-seated favoritism or antagonism that would make fair judgment
impossible," Canarelli, 138 Nev. at 109, 506 P.3d at 339 (internal quotation
marks omitted).
Here, anything the justice of the peace would have learned from
a preliminary hearing would have been in his official capacity, and he would
not have been inherently disqualified from sitting in successive preliminary
hearings in the same underlying case. Indeed, we note that the same justice
of the peace would presumably hear similar information about the case
whether he presided over a single preliminary hearing or over two or more
different hearings. Accordingly, the justice court's belief that holding more
than one preliminary hearing in this case would require hearings before
multiple other justices of the peace is without legal basis.
The justice court's second given reason for delaying
Chittenden's preliminary hearing—that having separate preliminary
hearings would place an undue financial burden on the State—is also
untenable in these circumstances. "The preliminary examination is not
intended to be a mini-triar Parsons v. State, 116 Nev. 928, 936, 10 13.3d
836, 841 (2000). The State set forth no factual basis for the justice court to
conclude that bifurcating Chittenden's hearing would have caused any

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hardship. including an undue financial burden, on the State. Cf. Lee v.
Sheriff of Clark Cnty., 85 Nev. 379, 380, 455 P.2d 623, 624 (1969) ("The
burden is upon the state to demonstrate good cause why appellant did not
receive a preliminary hearing within 15 days as required by NRS
171.196(2)."). The State did not address how many witnesses it required,
where those witnesses were located, or what additional expense would be
incurred in having separate hearings.3 Chittenden was also named in less
than one-third of the charges filed, which suggests that the State would not
have been required to present all of the same evidence or witnesses at the
codefendants' preliminary hearings.
Therefore, we conclude that the justice court's decision to delay
Chittenden's preliminary hearing 76 days from her initial appearance on
these grounds was patently unreasonable and a manifest abuse of
discretion. Insofar as the district court determined that the justice court's
stated reasons constituted good cause under Shelton, it also abused its
discretion.
The justice court also failed to consider Chittenden's constitutional
right to conditional pretrial liberty
As noted above, Shelton provided a nonexhaustive list of
potential reasons that could establish good cause to delay a preliminary
hearing beyond 15 days under NRS 171.196(2). However, when Shelton
was decided in 1969, the preliminary hearing was not yet recognized as a
critical stage in the proceedings. See Victoria v. Young, 80 Nev. 279, 284,
392 P.2d 509, 512 (1964) (concluding that the preliminary hearing is not a
critical stage in the proceedings), overruled on other grounds by Shelby v.

3We also note that the record indicates the elderly victim in this case
had passed away prior to Chittenden's initial appearance.
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Sixth Jud. Dist. Ct., 82 Nev. 204, 211, 414, P.3d 942, 945-46 (1966). Because
the preliminary hearing was not considered a critical stage, the hearing had
few constitutional implications beyond a limited right to counsel. Compare
Messrnore v. Fogliani, 82 Nev. 153, 154-55, 413 P.2d 306, 306-07 (1966)
(holding that an unrepresented defendant's Sixth Amendment rights were
violated only because witness testimony taken during the preliminary
hearing was introduced at trial), with Kaczmarek v. State, 120 Nev. 314,
326, 91 P.3d 16, 25 (2004) (recognizing that Sixth Amendment rights attach
at the time that "adversarial proceedings" commence, including preliminary
hearings); see also Patterson v. State, 129 Nev. 168, 174, 298 P.3d 433, 437
(2013) (recognizing the preliminary hearing as a critical stage in the
proceedings). As a result, the potential good cause grounds identified in
Shelton did not take into account the constitutional rights of the accused,
nor did it address how a lengthy delay might impact those constitutional
rights.
While Shelton's list of potential grounds to find good cause
remains good law, the Nevada Supreme Court recently recognized that
Iplretrial release and detention decisions implicate a liberty interest—
conditional pretrial liberty—that is entitled to procedural due process
protections." Johnston, 138 Nev., Adv. Op. 67, 518 P.3d at 102 (quoting
Holland v. Rosen, 895 F.3d 272, 297 (3d Cir. 2018)). The court
acknowledged. this fundamental pretrial liberty interest attaches after
arrest. See Valdez-Jimenez, 136 Nev. at 162, 460 P.3d at 984 (citing United
States v. Salerno, 481 U.S. 739, 750 (1987), for the proposition that "the
individual's strong interest in liberty" is "fundamental"). The court then
recognized that this constitutional interest is not limited to a defendant's
initial arrest, but also applies when a defendant is later remanded into

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custody pending a hearing to determine their custody status. See Johnston,
138 Nev., Adv. Op. 67, 518 P.3d at 102. In light of Johnston and Valdez-
Jimenez, we necessarily conclude that the right to conditional pretrial
liberty applies to defendants awaiting their preliminary hearings, which
also may involve Iplretrial release and detention decisions" based on the
justice court's probable cause findings. Id.
We recognize, however, that there has been no clear guidance
on how this constitutional right applies to a defendant's statutory right to a
preliminary hearing within 15 days. We therefore take this opportunity to
clarify how the defendant's constitutional rights articulated in Johnston
and Valdez-Jimenez impact the justice court's determination of good cause
for a delay under NRS 171.196(2), and we conclude that the court must
balance the constitutional rights of the defendant against the interests of
the State and the needs of the court when evaluating good cause.
Though a preliminary hearing itself is not a constitutional
mandate,' a defendant's detention pending their preliminary hearing
nonetheless implicates their constitutional interest in conditional pretrial
liberty and must be considered in the justice court's evaluation of good cause
for a delay under NRS 171.196(2). Johnston, 138 Nev., Adv. Op. 67, 518
P.3d at 102 ("The timing of a hearing, if one is required, is often of
fundamental importance for due process."); see also Thompson v. State, 86
Nev. 682, 683, 475 P.2d 96, 97 (1970) ("Statutes prescribing filing tinles and

"Azbill v. Fisher, 84 Nev. 414, 418, 442 P.2d 916, 918 (1968) ("There
is no Constitutional right to a preliminary hearing."), superseded by statute
on other grounds as stated in Davis v. Sheriff, Clark Cnty., 93 Nev. 511, 512,
569 P.2d 402, 403 (1977).
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trial dates serve as protection against oppression of people accused of
crimes.").

Therefore, when evaluating good cause to set a preliminary
hearing beyond 15 days from the initial appearance, justice courts must
consider the defendant's custody status and any applicable conditions of
pretrial release. The court must also consider the length of the anticipated

delay. See Chavez v. Dist. Ct., 648 P.2d 658, 660 (Colo. 1982) (finding that
relief in the form of ease-ending sanctions was warranted when the
appellant remained in custody for over a month due to the prosecution's lack
of preparedness where Colorado law required a preliminary hearing within
30 days); cf. Shelton, 85 Nev. at 619, 460 P.2,1 at 156-57 (affirming
preliminary hearing settings 2 and 3 days beyond the 15-day statutory
threshold); Stevenson, 92 Nev. at 536, 554 P.3d at 256 (affirming a
preliminary hearing setting 4 days beyond the 15-day statutory threshold).
An extensive delay beyond the initial 15 days, such as
Chittenden's, will more substantially impact a defendant's constitutional
rights, particularly when the defendant remains incarcerated. See McGee
v. Sheriff, Clark Cnty., 86 Nev. 421, 423, 470 P.2d 132, 133 (1970) (noting
that pretrial detention during "the pendency of a criminal charge may
subject an accused to public scorn, deprive him of his employment and
curtail his speech and associations"). On the other hand, longer delays can
more easily be justified when the defendant is neither detained nor subject
to onerous conditions of pretrial release, and so the justice court may
readdress the defendant's custody status contemporaneously with its good
cause analysis. Cf. NRS 178.499(1) (permitting the justice court, upon its
own motion, to increase the amount of bail for good cause); Salaiscooper u.

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Eighth Jud. Dist. Ct., 117 Nev. 892, 900-01, 34 P.3d 509, 515 (2001) ("The
justice courts have express authority to consider constitutional issues[J").
However, when considering a delay's impact on the defendant's
constitutional rights, the justice court must "balanc[e] the interest of the
State against fundamental fairness to a defendant with the added
ingredient of the orderly functioning of the court system." State v.
Moriwake, 647 P.2d 705, 712 (Haw. 1982) (quoting State v. Braunsdorf, 297
N.W.2d 808, 817 (Wis. 1980) (Day, J., dissenting)); see also Bullock v.
Superior Ct. of Contra Costa Cnty., 264 Cal. Rptr. 3d 699, 714 (Ct. App.
2020) (balancing due process interests in a timely preliminary hearing
against the specific risks of COVID-19).
The Nevada Supreme Court has already recognized
circumstances where the State would be entitled to a continuance of the
preliminary hearing. See, e.g., Hill u. Sheriff, Clark Cnty., 85 Nev. 234, 235,
452 P.2d 918, 919 (1969) (recognizing that good cause to continue a
preliminary hearing may exist when a subpoenaed witness is unavailable).
We see no reason why the anticipated unavailability of a witness, and other
grounds that may constitute good cause for a continuance, should not also
be relevant considerations when initially setting a preliminary hearing.
Further, as already established by Shelton, the justice court may take into
account the needs of the court when determining whether good cause exists
for a delay, including the court's calendar and the pendency of other cases.
85 Nev. at 620, 460 P.2d at 157; Stevenson, 92 Nev. at 537, 554 P.3d at 255.5

5We note that a defendant may waive the right to a preliminary
hearing within 15 days, see NRS 171.196(2), in which case a good cause
analysis is not required.
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What constitutes good cause to set a preliminary hearing
outside 15 days under NRS 171.196(2) is not subject to a bright-line rule

and will vary based on the facts and circumstances of each case. See
Shelton, 85 Nev. at 620, 460 P.2d at 157. However, the justice court must
make findings of fact as to what constitutes good cause so that the reviewing
court is not left to speculate as to the justice court's reasoning. Bullock, 264
Cal. Rptr. 3d at 714; see also State v. Ruscetta, 123 Nev. 299, 304, 163 P.3d
451, 455 (2007) ("Although certain facts may be inferred from the district
court's ruling, we decline to speculate about the factual inferences drawn by
the district court." (internal quotation marks omitted)).
Thus, "[t]he record must reflect that the [delay] was reasonable
in both purpose and length" when the justice court determines that a delay
is justified. State v. Martin, 384 N.E.2d 239, 242 (Ohio 1978) (internal
quotation marks omitted). And there should be a "nexus between the
[reason for the delay] and the purported need to delay the hearing."
Bullock, 264 Cal. Rptr. 3d at 714. Therefore, when finding that good cause

exists to set a preliminary hearing beyond 15 days, the justice court must
make findings, either in writing or on the record, as to why the delay is
justified and should also undertake efforts to set the preliminary hearing as
soon as possible after the 15-day period.
In this case, the justice court manifestly abused its discretion
by failing to consider Chittenden's constitutional interest in conditional
pretrial liberty when evaluating good cause for the delay. Prior to setting
her preliminary hearing, the court denied Chittenden's request for a release

or reduction in bail, and so Chittenden remained in custody for more than
two months before the State was required to meet its statutory burden to
prove "that there [was] probable cause to believe that an offense has been

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committed and that [Chittenden] committed it." NRS 171.206. The 61-day
delay in this case was extraordinary, particularly when compared with the
two-, three-, and four-day delays deemed justified in Shelton and Stevenson.
In fact, by setting her preliminary hearing 76 days from the date of the
initial appearance, the justice court delayed Chittenden's preliminary
hearing beyond the time that she would have been statutorily entitled to a
trial. See NRS 178.556 (providing that the court may dismiss a case if the

accused is not brought to trial within 60 days after the arraignment on an
indictment or information). Further, the record does not reflect that the
court made any efforts to set Chittenden's hearing within 15 days or as soon
as possible thereafter.6
Although the justice court's good cause determination
addressed its own interest regarding the pendency of other cases and the
court's calendar as well as the State's interest in avoiding unnecessary
public expense, as detailed above, the court's justifications for the delay
were premised on mistakes of law and fact. When balancing Chittenden's

strong constitutional interest against the interests of the State and court in

"The State argues on appeal that, even in the absence of good cause,
Chittenden was required to show that the delay prejudiced her. We
disagree. Notably, the State relied on authorities addressing a
constitutional speedy trial claim, including Barker u. Wingo, 407 U.S. 514
(1972), and Doggett v. United States, 505 U.S. 647 (1992). However, unlike
a constitutional speedy trial violation where the defendant is required to
demonstrate prejudice, see Barker, 407 U.S. at 530, a defendant is not
required to show prejudice when asserting a statutory violation of NRS
171.196(2), which places the burden exclusively on the State to establish
good cause for the delay, Lee, 85 Nev. at 380, 455 P.2d at 624. Nevada has
not previously required a defendant to show prejudice if the State fails to
satisfy its burden to establish good cause under NRS 171.196(2), and we
decline to impose such a requirement here.
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this case, the proffered good cause was plainly inadequate to justify the 61-
day delay, and the district court abused its discretion in finding otherwise.
See Round Hill, 97 Nev. at 603-04, 637 P.2d at 536.
Other grounds support the denial of the petition for a writ of mandamus
While we agree with Chittenden that there was no good cause
to justify the delay in her preliminary hearing, her petition for a writ of
mandamus sought remedies that the district court could not provide. As
noted above, a writ of mandamus is only available to compel the
performance of an act that the law requires as a duty resulting from an
office, trust, or station, or to control a manifest abuse or arbitrary or
capricious exercise of discretion. Id. at 604, 637 P.2d at 536; NRS 34.160.
In her writ petition, Chittenden requested that the district court compel the
justice court both to "follow the law as set forth by NRS 171.196" and to
dismiss the case.
Chittenden's first request for relief, that the district court
compel the justice court to "follow the law," would hnve required the justice
court to set her preliminary hearing within 15 days under NRS 171.196(2).
When initially setting a preliminary hearing, NRS 171.196(2) provides that
the magistrate "shall" set the hearing within 15 days unless the time is
extended for good cause, and thus, assuming there is no good cause for a
delay, the statute reflects a nondiscretionary obligation. See Markowitz v.
Saxon Special Servicing, 129 Nev. 660, 665, 310 P.3d 569, 572 (2013) ("The
word 'shall' is generally regarded as mandatory."). Because the statute is
mandatory, mandamus could arguably apply to compel the justice court to
set a preliminary hearing within 15 days under NRS 171.196(2). However,
in this case, Chittenden's request was moot; her hearing could not have been

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set within 15 days because Chittenden waited a month after her initial
appearance to file the writ petition.7

That left Chittenden's request for dismissal as the only viable
request for relief that remained. However, Chittenden failed to request
dismissal in the justice court in the first instance. "Mandamus lies to
correct clear error or an arbitrary abuse of discretion by the [justice] court,

a standard that requires adequate presentation of the issue to the [justice]
court for decision in the first instance." PN II, Inc. v. Eighth Jud. Dist. Ct.,
No. 71051, 2016 WL 5400225 (Nev. Sept. 16, 2016) (Order Denying Petition
for Writ of Mandamus and Prohibition) (internal citations omitted) (citing
United States v. U.S. Dist. Ct., 384 P.3d 1202, 1205 (9th Cir. 2004) (declining
to consider as a basis for mandamus an argument not presented to the lower
court)); see also Plata v. Schwarzenegger, 560 F.3d 976, 984 (9th Cir. 2009)
("It would be most inappropriate for this court to address issues . . . by the
extraordinary writ of mandamus before the [lower] court has dealt with
them."). The district court in this case could not have properly compelled
the justice court to grant Chittenden's request for dismissal because
Chittenden neither requested dismissal in the justice court in the first
instance, nor was the justice court required to dismiss her case sua sponte.
See Sheriff, Clark Cnty. v. Hatch, 100 Nev. 664, 666 n.I, 691 P.2d 499, 450
n.1 (1984).8

7We note that Chittenden's writ petition did not request to revisit her

bail or custody status.

8 There is no statutorily mandated dismissal remedy for a violation of
NRS 171.196(2). Cf. NRS 178.556(1) (providing that the district court "may
dismiss the complaint" or "indictment or information" for an unnecessary
trial delay). As the Nevada Legislature has expressly provided a dismissal

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(0) 194TR •L-41.1.
Further, insofar as Chittenden requested that the district court
compel the justice court to dismiss her case because the delay in her

preliminary hearing resulted in her unlawful detention, Chittenden's
request for relief was not properly raised in a mandamus writ petition.
Rather, the appropriate vehicle to challenge unlawful detention resulting
frorn an alleged violation of NRS 171.196(2) is a petition for a writ of habeas

corpus. Id. ("[W]here an accused is detained unlawfully by reason of
violation of jurisdictional procedural requirements, denial of a speedy trial,
or other proper grounds, a district court may review the legality of the
detention on habeas corpus."). Although "[a] pretrial writ of habeas corpus
is not the proper avenue to challenge a discretionary ruling," Stctte v.
Nelson, 118 Nev. 399, 404, 46 P.3d 1232, 1235 (2002), as noted above, NRS
171.196(2) obligates the justice court to set the preliminary hearing within
15 days in the absence of good cause for a delay. Thus, Chittenden's request
to dismiss her case due to her unlawful detention should have been raised
in a petition for a writ of habeas corpus.

remedy for improper delays that violate a defendant's statutory right to a
speedy trial, the absence of a similar statutory remedy for an improper
delay before a preliminary hearing is presumed intentional. See State, Dep't
of Tax'n v. DaimlerChryster Servs. N. Arn., LLC, 121 Nev. 541, 548, 119 P.3d
135, 139 (2005) ("Nevada law also provides that the omissions of subject
matters from statutory provisions are presumed to have been intentional.").
However, dismissal without prejudice has been recognized as a
discretionary remedy in similar circumstances. See, e.g., Sheriff, Clark
Cnty. v. Blackmore, 99 Nev. 827, 829, 673 P.2d 137, 138 (1983) (providing
that a magistrate's dismissal at the preliminary hearing is without
prejudice unless the prosecution acted in a willful or consciously indifferent
manner); McNair t). Sheriff, Clark Cnty., 89 Nev. 434, 439, 514 P.2d 1175,
1178 (1973) (noting the prosecution's acknowledgment that the "justice of
the peace correctly denied the State's motion for continuance and dismissed
its complaint against appellant").
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Therefore, the district court properly denied her petition for a
writ of mandamus, albeit on other grounds. See Wyatt v. State, 86 Nev. 294,

298, 468 P.2d 338, 341 (1970) ("If a judgment or order of a trial court reaches
the right result, although it is based on an incorrect ground, the judgment
or order will be affirmed on appeal.").
CONCLUSION
In summary, we conclude that good cause did not exist to delay
Chittenden's preliminary hearing for an additional 61 days beyond the 15-
day threshold as set forth in NRS 171.196(2). Insofar as the district court
found that good cause existed for the delay, the district court abused its
discretion. Further, the justice court manifestly abused its discretion in
failing to consider Chittenden's constitutional right to conditional pretrial
liberty when it delayed her preliminary hearing, during which time
Chittenden remained in custody.
When evaluating whether there is good cause to delay an initial
preliminary hearing setting beyond 15 days, justice courts must balance the
defendant's constitutional rights against the interests of the State and the
needs of the court. And we hold that justice courts must make findings as
to why a delay is justified and must undertake efforts to ensure that the
preliminary hearing is held as soon as possible thereafter.
Even though we conclude that good cause did not exist for the
delay in this case, the district court properly denied Chittenden's petition
for a writ of mandamus because the two forms of relief she requested were

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unavailable to her. Accordingly, we affirm the district court's decision,
albeit on other grounds.

We concur:

, C.J.
Gifpbons

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Bulla
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