Petition for Writ of Certiorari — Trust v. Perry (No. 06-36)

Vw eMVIGINS VUUIL, UD.

( FILED

ee MAY 2 2006

NAPFICE OF THE CLERK

IN THE

Supreme ‘Couet of the Vpiled Shales

PUBLIC AGENCY COMPENSATION TRUST (PACT),

Petitioner

V.

COLIN PERRY ET AL.,

Respondents

On Petition For Writ Of Certioran

To The Nevada Supreme Court

PETITION FOR WRIT OF CERTIORARI

STEPHEN C. BALKENBUSH, ESQ.*

ROBERT F. BALKENBUSH, ESO

Thorndal, Armstrong,

Delk, Balkenbush & Eisinger

6590 S. McCarran Blvd, Ste. B :

Reno, NV 89509

(775) 786-2882

* Counsel of Record

May 2, 2006

Attorneys for the Petitioner

a

i

QUESTION PRESENTED

Whether the conclusive presumption in NRS 617.457

violates the Due Process Clause of the Fourteenth

Amendment.

il

PARTIES TO PROCEEDING

I. Petitioner

Public Agency Compensation Trust (PACT)

Il. Respondents

Colin Perry 4

Employers Insurance Company of Nevada

Nevada Department of Administration Appeals Office

CORPORATE DISCLOSURE STATEMENT

Petitioner PUBLIC AGENCY COMPENSATION

TRUST (hereinafter “PACT’”) is a Self-Insured Association

which provides industrial insurance to Elko County,

including the Elko County Sheriff's Department.’

' In fact, PACT provides industrial insurance to a number of

political subdivisions, including, but not limited to: the City of Carlin, the

City of Caliente, Carson City, Churchill County, Douglas County, the City

of Ely, Esmeralda County, Eureka County, the towns of Fernicy.

Gardnerville and Genoa, Humboldt County, Lander County, Lincoln

County, the City of Lovelock. Lyon County. the City of Mesquite,

Mineral County, Nye County, the town of Pahrump, Pershing County.

Storey County, the town of Tonopah, the City of Wells, White Pine

County, and the citics of Yerington and Winnemucca.

There is no parent or publicly held company owning 10% or

more of the corporation’s stock. Rule 29.6.

iil

TABLE OF CONTENTS

QUES TIE PROEC TIED ois Sav ne kp cbobccdssccees 1

PARTIES TU PRAM oon cin suveubecscncceen il

CORPORATE DISCLOSURE STATEMENT .......... i

Ps A Ce sv a ic ck eee I1-1V

SA Gr Fe iv bs So earesba couse V-V1

FUT I oo en ieee 1-3

SEAR EEE S COE CINE Ge cing eb od be oa oN ernest 1-3

EI as se eps cc codvne saoeueeees 3-5

LAS PEST Se xo ede Ni Wend eke wees 6-14

A. The United States Supreme Court Has Found

Statutes Creating Conclusive or Irrebuttable

Presumptions Invalid and Violative of Due

4. Serine onehennanam eden 6-11

B. The Usery Case Demonstrates that the Five

Year Rule is Completely Arbitrary ... 11-12

C. - The Implications of NRS 617.457

Demonstrate the Lack of Due Process . 12-14

CACY 8 Ch owas sana Reet ee 4

1V

PP EPLM 6 30 655 5 5 na WAN cea etaawe dh eewee 15

PTR Se ooo 6 Son Ce acyaieaes la-l6a

12/13/00 Decision of the Appeals Officer

PI 5 oo hb cei oe deen 1b-12b

08/21/02 Order Denying Petition for Judicial

Review

PI 5c tna ast pice hh ews eon Ic-6c

10/18/05 Order of Affirmance

PE 2555 555 oa oe i Wk ea ee ss 1d-2d .

12/20/05 Order Denying Rehearing

MEN UE ohn ca Rh ee ee eek ems le-2e

02/01/06 Order Denying En Banc

Reconsideration

Vv

TABLE OF AUTHORITIES

CASES

Allen v. State Pub. Emp. Ret. Bd... 100 Nev. 130, 676 P.2d

PO oe EE ELE ES FER GEOR OD 6

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S. Ct.

PRR RESEE 6 615i Ws Fw 7

Ducharme v. City of Putnam, 285 A.2d 318 (Conn. 1971) ..

Dap ea ala Sy aah ae coe er Ses Mere ri iis 4,5, 10

Edwards v. Sheriff, Clark County, 93 Nev. 13, 15, 558 P.2d

PRONE EY 6d ic oh ee eae ee 9

Gallagher v. City of Las Vegas, 114 Nev. 595, 600, 959 P.2d

De NUE 5 oc ki cs ORE Aw wD Pe ee 4

Stanley v. Illinois, 405 U.S. 645, 92.8. Ct. 1208 (1972)... 8

Tot v. United States, 319 U.S. 463 (1943) ............. 10

Turner v. Dep’t of Employment Sec., 423 U.S. 44, 96 S. Ct.

PT ae eat Ee oe eek AA a we ne ha 8

United States Dep’t of Agric. v. Murry, 413 U.S 508, 93 S.

Re: RE 2: pate al gi ytd Grane te aka ae 8

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 26-28

SR ae Se bk be Oa eden See Ae he eae 11

Vlandis v. Kline, 412 US 441, 93 S. Ct. 2230 (1973) ..... 6

4 |

STATUTES AND REGULATIONS

EI Se a VOLUN No EG aes wake hemmeaere es 13

TU rai pas 2 a Oh ee Wk ce ae a passim

Le sw 8a hes See EP REA CaS TAES hae OS Seem I

JURISDICTION

Petitioners seek review on certiorari of an Order

Denying En Banc Reconsideration entered by the Nevada

Supreme Court on February |, 2006.

Jurisdiction is based upon S.C.R. 10(c) as the Nevada

Supreme Court has decided an-important federal question in a

way that conflicts with decisions of the United States

Supreme Court. The Court also has jurisdiction pursuant to

28 U.S.C. § 1257 as it involves a Nevada state statute that is

repugnant to the United States Constitution. Specifically,

NRS 617.457 is in violation of the due process clause of the

Fourteenth Amendment.

STATEMENT OF THE CASE

Petitioner PUBLIC AGENCY COMPENSATION

TRUST (hereinafter “PACT’”) is a Self-Insured Association

which provides industrial insurance to Elko County, Nevada,

including the Elko County Sheriff's Department.

Respondent COLIN PERRY (hereinafter “Perry”) is a

resident of Elko County and was an employee of the Elko

County Sheriff's Department in the capacity of a Deputy

> In fact, PACT provides industrial insurance to a number of

political subdivisions, including, but not limited to: the City of Carlin. the

City of Caliente, Carson City. Churchill County, Douglas County, the City

of Ely, Esmeralda County, Eureka County, the towns of Fernley,

Gardnerville and Genoa, Humboldt County, Lander County, Lincoln

County, the City of Lovelock, Lyon County, the City of Mesquite,

Mineral County, Nye County, the town of Pahrump, Pershing County,

Storey County, the town of Tonopah, the City of Wells, White Pine

County, and the cities of Yerington and Winnemucca.

2

Sheriff at all times relevant to the subject matter of the case

at bar.

The Employers Insurance Company of Nevada

(hereinafter “EICN”) is currently a mutual insurance

company providing industrial insurance to employers in the

_ State of Nevada. At some time pertinent to the factual aspect

of this case, EICN was known as the State Industrial

Insurance System (hereinafter “SITS”).

Perry was a Deputy Sheriff for Elko County from

1986 to 2000. App. Vol. X 1852-54; App. Vol. 1X 1704. In

1992, Perry filed a claim for coronary artery disease with

Elko County. App. Vol. IT 198-203. The SIS, now EICN, ee

was the worker’s compensation carrier for the County at that

time. EICN accepted his claim.

In 1998, Perry sought to reopen his coronary artery

disease claim. App. Vol. II 196-197, 287. The EICN denied

his request. Id. Perry appealed EICN’s determination to a

Hearing Officer. Id. at 189-90. The Hearing Officer

affirmed the EICN’s determination, concluding that the

PACT was now responsible for Perry’s coronary artery

disease by virtue of the last injurious exposure rule. Id.

Perry and the PACT appealed the Hearing Officer’s decision

to an Appeals Officer. App. Vol. | 181-82, 186; App. Vol. I]

288-90. These appeals were assigned official numbers;

namely, Appeal No. CAE-1999-C-898-TR and Appeal No.

CAE-1999-E-907-TR. Id.

In 1998, Perry also filed a claim for his coronary

artery disease with the PACT. App. Vol. VIII 1567

(Deposition of Dr. Owens, at Exhibit 2). The PACT denied

his claim on the basis that the factual circumstances

supported reopening of his coronary artery disease claim filed

with EICN. App. Vol. II 193-94. Perry appealed the

PACT’s determination to a Hearing Officer. Id. at 191-92.

The Hearing Officer reversed the PACT’s determination. Id.

‘7

The PACT appealed the Hearing Officer’s decision to an

Appeals Officer, and an official number-was assigned to the

PACT’s appeal; namely, Appeal No. CAE-1999-E-842-TR.

App. Vol. 1 7-9, 184-85; -App. Vol. II 290.

By written decision entered on December 13, 2000,

the Appeals Officer held the PACT responsible for Perry’s

coronary artery disease. App. Vol. XI 2088-2101; App. A.

la-15a.

On January 9, 2001,-the PACT filed a Petition for

Judicial Review with the District Court contending, inter

alia, that the conclusive presumption in NRS 617.457

violated the due process clause of the Fourteenth.

Amendment. By written decision entered on August 21,

2002, the District Court denied PACT’s petition for judicial

review. App. Vol. XI 2139-2150; App. B 1b-12b. On

August 28, 2002, written notice of entry of the District

Court’s order was served by mail on PACT. App. Vol XI at

2151-52. On September 18, 2002, PACT filed its notice of

appeal with the District Court. Id. at 2153-55.

On October 18, 2005, the Nevada Supreme Court

entered an order affirming the District Court’s denial of the

petition for judicial review. App. C Ic-6c. The Petitioner

thereafter filed a request for rehearing, and on December 20,

2005, the Nevada Supreme Court issued an order denying

rehearing. App. D Id-2d.

Petitioner subsequently filed a Petition for En Banc

Reconsideration with the Nevada Supreme Court. App. E le-

2e. On February |, 2006, the Nevada Supreme Court entered

an order denying en banc reconsideration. Id.

INTRODUCTION

This case involves the constitutionality of the

conclusive presumption in NRS 617.457, a Nevada statute

4

within the Nevada Occupational Disease Act. As the Nevada

Supreme Court has explained, “[{t]he primary purpose of

Nevada’s workers’ compensation laws is to provide

economic assistance to persons who suffer disability or death

as a result of their employment.” Gallagher v. City of Las

Vegas, 114 Nev. 595, 600, 959 P.2d 519, 521 (1998),

emphasis added.

- The conclusive presumption in NRS 617.457

eliminates the requirement of proof of a causai relation

between heart disease and the occupations of policemen and

firemen. Indeed, the presumption created by NRS 617.457(1)

being a conclusive one, and hence not rebuttable by proof of

the actual facts, requires an adjudication that a perfectly

healthy off-duty policeman (and even a retired policeman),

who may bring on a heart attack by overexertion working at

home or on the last day of a lengthy out-of-state vacation,

suffered the attack in the course of his employment, in the

line of duty, and within the scope of his employment, despite

the circumstance that the situation is entirely without

foundation in fact. See Ducharme v. City of Putnam, 285

A.2d 318 (Conn. 1971); NRS 617.457(1). Tthe PACT

respectfully submits that NRS 617.457 creates a conclusive

presumption in violation of the Due Process Clause. In

addition, this appeal has enormous public policy implications

as recent actuarial reports have determined that the

conclusive presumption of work related heart disease will

create an estimated $2.8 billion dollars in unfunded workers

compensation liability over the next three decades.

The conclusive presumption in NRS 617.457

constitutes an.attempt, by legrslative fiat, to enact into

existence a fact which does not, and cannot be made to, exist

5

in actuality.’ Ducharme v. City of Putnam, 285 A.2d at 321-

22. The power to treate presumptions is not a means of

escape from constitutional restrictions Id. It is not without

significance that although many states have recognized the

special situation of firemen and policemen, and the problems

of proving a causal relationship between their employment

and heart ailments and have provided special treatment for

them in the nature of rebuttable presumptions, as to

causation, no other state appears to have successfully

attempted by legislative fiat and conclusive presumption

to bar the insurer from attempting to prove the negative

fact that in a contested worker’s compensation case the

heart ailment was not causally connected with the

employment. Ducharme v. City of Putnam, 285 A.2d at 322.

The PACT believes this Court is constrained to hold

that the conclusive presumption prescribed by NRS

617.457(1) in the adjudication of workmen’s compensation

Cases is in contravention of the due process clause of the

United States Constitution.

* There is no consensus in the medical or scientific community

that employment as a police officer or fireman causes heart disease.

Hence, it is patently irrational to conclusively presume that any heart

disease suffered by a policeman or fireman during his lifetime is job-

incurred, if the heart discase manifests itself anytime after 5 years of

continuous work in that occupation. Sec. PACT Reply Brief at pp. 12-16;

Vol IX, Appellant’s Appendix at 1160-1703. See App. C at 3c.

6

LEGAL ARGUMENT

A. The United States Supreme Court Has Found

Statutes Creating Conclusive or Irrebuttable

Presumptions Invalid and Violative of Due

Process.

Several cases heard by the Supreme Court of the

United States demonstrate how conclusive presumptions

enacted in other states have been found to violate the due

process clause of the Fourteenth Amendment.* One exa™ole

is Vlandis v. Kline, which involved a Connecticut statute

regarding residency status in determining tuition rates for the

state university system. 412 US 441, 93 S. Ct. 2230 (1973).

Under the Connecticut statute, for tuition purposes, the status

01 the student as a nonresident at the time of application for

admission was conclusively presumed to continue fv, the

entire period of attendance. Id. This created a due process

issue because nonresident students were required to pay

higher tuition in order to attend the state university, and they

were not afforded the opportunity to present evidence of

residency.

The conclusive presumption of the statute was

challenged by students who had become a bona fide residents

of the state, yet they were still considered nonresidents for

tuition purposes because they were not residents at the time

they applied to the university system. Id. The state argued

* The right of due process is a federal right. Therefore, whether

legislation violates due process must be analyzed under the principles

articulated and applied by the Unites States Supreme Court. The Nevada

Supreme tacitly acknowledged the foregoing point when it cited in

support of its order of affirmance Allen v. State Pub. Emp. Ret. Bd., 100

Nev. 130, 676 P.2d 792 (1984). :

7

that this conclusive or irrebuttable presumption was

necessary because they had a valid interest in equalizing costs

for bona fide residents who subsidize the state university

system, and that the state can reasonably offer lower rates

only to its established residents whose past tax contributions

to the state have been higher. The other reasoning offered by

the State was that it offers administrative certainty and

simplifies what would be an expensive administrative burden

of evaluating when bona fide residency exists. Id. at 451,

2236.

The Court noted that, “[s]tatutes creating permanent

irrebuttable presumptions have long been disfavored under

the Due Process Clause of the Fifth and Fourteenth

Amendments.” Id. At 446, 93 S. Ct. At 2233. The Court

went on to hold that “it is forbidden by the Due Process

Clause to deny an individual the resident rates on the basis of

a permanent and irrebuttable presumption of nonresidence,

when that presumption is not necessarily or universally true

in fact, and when the State has reasonable alternative means

of making the crucial determination.” Id at 452, 93 S. Ct. at

2236. -

Another case where the Supreme Court found that an

irrebuttable presumption violated the Due Process Clause

involved a school board policy which required pregnant

female teachers to terminate employment at least five months

before their due date. Cleveland Bd. of Educ. v. LaFleur, 414

U.S. 632, 94 S. Ct. 791. (1973). There was no individualized

determination by the teacher’s doctor, or the school board, as

to a particular teacher's ability to continue at her job. The

Court found that the policy amounted to a conclusive

presumption that every pregnant teacher who reached a

certain date of pregnancy is physically incapable of

continuing employment, even when the medical evidence as

to an individual woman’s physical status might be wholly to

8

the contrary. Id, at 644. It was evident to the Court that the.

ability of any particular pregnant woman to continue to work

past any fixed time is very much an individual matter, thus

the conclusive presumption embodied in the policy was

neither necessarily nor universally true, and violated the Due

Process Clause. Id,

The Court also addressed the school board’s argument

that the mandatory termination date serves the state’s interest

of administrative convenience in keeping physically unfit

teachers out of the classroom. The Court held that “[w]hile it

might be easier for the school board to conclusively presume

that all pregnant women are unfit to teach past the fourth or

fifth month or even the first month of pregnancy,

administrative convenience alone is insufficient to make

valid what otherwise is a violation-of due process of law.”

gale

The Supreme Court has used the same principles and

analysis in finding other laws containing irrebuttable

presumptions to violate due process rights. An irrebuttable

presumption under an Illinois law that unmarried fathers are

unsuitable and neglectful parents was found to violate due

process because parental unfitness must be established on the

basis of individualized proof. Stanley v. Illinois, 405 U.S.

645, 92. S. Ct. 1208 (1972). Despite the state's interest in

protecting children from neglectful parents, the means used

to achieve this interest must still be constitutionally

defensible. Id. at 652, 1213. In another Supreme Court

decision, a “tax dependent” provision of the Food Stamp Act

that rested on an irrebuttable presumption often contrary to

fact was invalid for lacking critical ingredients of due

process. United States Dep’t of Agric. v. Murry, 413 U.S

508, 93 S. Ct. 2832 (1973). See also, Turner v. Dep’t of

Employment Sec., 423 U.S. 44, 96 S. Ct. 249 (1975),

(presumption that pregnant women are incapable of working

after six months of pregnancy.)

Just like the statutes in the aforementioned Supreme

Court cases, NRS 617.457 creates an irrebuttable

presumption that all heart disease suffered by police officers

is a result of their employment. The effect of that irrebuttable

presumption is that it provides no opportunity to Insurers and

Employers who are required to provide workers’

compensation coverage to demonstrate that the heart disease

is not work related.

As the cases illustrate, an irrebuttable or conclusive

presumption should be based upon a presumption that is

necessarily or universally true in fact. The Nevada Supreme

Court has supported this view and described the

constitutional burden as to a conclusive presumption as

requiring “substantial assurance that the presumed fact is

more likely than not to flow from the proved fact on which it

is made to depend.” Edwards v. Sheriff, Clark County, 93

Nev. 13, 15, 558 P.2d 1144 (1977). Just as it is not

necessarily or universally true in fact that all women who are

4 months pregnant are unable to work, that out of state

college students never become bona fide residents, or that all

unmarried fathers are unfit parents, it is not necessarily or

universally true in fact that all heart disease suffered by

police officers during their lifetime is the result of their

occupation, if the disease manifests itself anytime after 5

years of continuous work in that occupation. Due process

requires that each case be considered on an individual basis.

Furthermore, the Supreme-Court stresses that

administrative ease and legitimate state interests cannot save

a conclusive presumption from invalidity under the Due

Process Clause where there are other reasonable and

practicable means to achieve the State’s goals. While

Nevada may have a legitimate interest in ensuring that police

10

officers receive workers’ compensation benefits, encouraging

police officers to remain in public service, and in making the

administrative process for such claims more efficient, the

means used by the State in furtherance of those interests have

subverted the due process rights of the insurers and

employers who are required to pay for the workers’

compensation claims. By relieving police officers of the

burden of proving the causal connection between their heart

disease and their employment, the legislature has effectively

stripped the insurers and employers of the opportunity to

challenge a heart disease claim that is totally unrelated to

employment. Just as the United States Supreme Court has

expressed, when there are reasonable alternative means to

promote the State’s interest without violating due process,

those means must be employed.

If the State of Nevada has an interest in making an

outright gift or special benefit to police officers and firemen,

it must do so outside the Nevada Industrial Insurance Act and

Nevada Occupational Disease Act. See, Ducharme the City

of Putnam 285 A. 2d at 322-23. Such a special benefit or gift

type legislation is not present before this Court for

consideration. The PACT respectfully submits that

regardless of what the Nevada Legislature might have

constitutionally done to provide police officers and firemen a

heart disease benefit, the legislature did not do so in enacting

NRS 617.457(1). A special gift or benefit cannot come

under the guise of workers’ compensation benefits and at the

expense of the insurers and employers who must pay for

those bencfits. Doing so has violated the due process rights

of those insurers and employers.

Finally, as previously expressed by the United States

Supreme Court in Tot v. United States, 319 U.S. 463 (1943),

a presumption cannot be prescribed solely because it is very

difficult for the opposing counsel to prove his case. /d. at

1]

467-69. A fortiori, the foregoing is true with respect to

statutory conclusive presumptions, Ducharme v. City of

Putnam, 285 A.2d 318, 321-22 (Conn. 1971).°

B. The Usery Case Demonstrates that the Five Year

Rule is Completely Arbitrary

In the Usery case, there was a consensus that

pneumoconiosis was causally related to the occupation of

coal mining, through inhalation of coal dust. Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 26-28 (1976). It was this

foundational fact that permitted congress to enact a rebuttable

presumption based upon years of employment. Id, In turn,

the congressional record contained medical evidence

indicating the noticeable incidence of pneumoconiosis in

cases of miners with ten (10) years employment in the mines.

Id. Therefore, the court could not say it was “purely

arbitrary” for congress to select the 10 year figure as a point

of reference for the rebuttable presumptions at issue in that

case. Id.

In contrast to the Usery case, there is no similar

medical consensus on employment as a police officer or

fireman and the causation of heart disease. Hence, it was

improper for the legislature to even establish a duration of

employment rule as a premise for the conclusive presumption

at issue in this case.

Furthermore, the specific legislative history upon

which the Nevada Legislature premised its determination to

> Asa result, the PACT respectfully submits that the hypothesis

that the Nevada Legislature may have enacted NRS 617.457 “to eliminate

costly battles of the experts used to prove or disprove a causal connection

between firefighting and police work and heart disease,” cannot survive

the due process challenge pressed by PACT in this case. App. C at 4c.

12

enact the conclusive presumption in NRS 617.457 is part of

the record on appeal. See, Vol IX, Appellant’s Appendix at

1160-1703. The “stuff of actual experience” amassed in this

legislative history was essentially two (2) appeals officer

decisions filed respectively on March 21, 1989 and August

12, 1987. Id. In this legislative history, there is no medical

evidence indicating that 5 years’ employment as a police

officer fireman is associated with a notable incidence of heart

disease. Id. For this reason, the 5 year employment rule is

“purely arbitrary.” Moreover, the 1987 Appeals Officers

decision is scholarly and clearly proves or shows that it was

irrational for the Nevada Legislature in 1989 to have

concluded that after 5 years of work as police officer fireman,

any heart disease that a policeman or fireman has in his entire

life arose out of and 1n the course of his employment as a

policeman or fireman. See, PACT Reply Brief at pp.12-16.

c The Imptications of NRS 617.457 Demonstrate the

Lack ef Due Process

Fol!owing the administrative trial of this matter, new

information arose that demonstrated the effect NRS 617.457

will have on the State of Nevada. On July 31, 2005, an

article appeared in the Las Vegas Review Journal which

discussed NRS 617.457. See, PACT’s Petition for En Banc

Reconsideration. The subject of the article was the effect that

NRS 617.457 and the. corresponding lung and hepatitis

statutes will have on the local governments who must provide

workers’ compensation benefits ©» public safety workers.

Until recently, the financial imp: of these statutes was

unknown.

The article discussed actuarial reports which

examined the outstanding benefit costs that would be

incurred for public safety worker heart disease, lung disease

13

and hepatitis claims. Id. The reports were prepared for

-various Nevada cities and entities that would be effected by

such claims. Id, The actuarial reports were completed for the

Cities of Las Vegas, North Las Vegas, Henderson, Reno,

Sparks, and the Las Vegas Metropolitan Police Department.

Of significance, the article pointed out that the actuarial

report completed for the City of Las Vegas found that the city

faced at least $791 million of claims-related expenses as a

result of the conclusive presumption created by the heart,

lung, and hepatitis statutes. The combined cost for all of the

entities who participated in the study was estimated at $2.8

billion over the next three decades, which the reports

identified as a conservative estimate. Id.

The factual information contained within the article

and the reports raises significant public policy issues for the

State of Nevada. By creating a conclusive presumption that

all heart disease suffered by police officers is work related,

the Legislature has created an unfunded liability the local

governments and their insurers must bear to the tune of

hundreds of millions of dollars.

This unfunded mandate is contrary to the public

policy of the State of Nevada. A statutory provision added in

1999 specifically requires legislative measures that will cost

local governments in excess of $5,000 to indicate that the

measure contains an unfunded mandate, and whether the

measure was requested by the local governments who will

bear the costs. NRS 218.2479. The clear intent of this

statute is to avoid sticking local governments with unfunded

mandates unless the local governments are the ones

requesting the increase in programs or services.

The fiscal impact of NRS 617.457 is only now being

revealed to counties, cities, and insurers who will bear the

cost. The statute constitutes an unfunded mandate which the

local governments of Nevada never requested, and one which

4

the local governments of Nevada cannot afford. The statute’s

violation of due process will ultimately have serious public

policy implications for the State of Nevada.

CONCLUSION

In accordance with the foregoing, Petitioner

respectfully request that this Court grant the petition for writ

of certiorari.

Respectfully submitted,

STEPHEN C. BALKENBUSH, ESQ.*

ROBERT F. BALKENBUSH, ESQ.

Thorndal, Armstrong,

Delk, Balkenbush & Eisinger

6590 S. McCarran Blvd, Ste. B

Reno, NV 89509

(775) 786-2882

* Counsel of Record

May 2, 2006

Attorneys for the Petitioner.