Pleading - Association of American Physicians and Surgeons



WILLIAM H. BROWN, ESQ.

Nevada Bar No. 7623

NEEMAN, MILLS & PALACIOS, LTD.

1311 South Maryland Parkway

Las Vegas, Nevada 89104

(702) 822-4444 – office

(702) 822-4440 – fax

Attorneys for Amicus Curiae,

The Association of American

Physicians & Surgeons, Inc.

IN THE SUPREME COURT OF THE STATE OF NEVADA

MITCHELL EARL PHILLIPS, )

)

Appellant, )

) CASE NO.: 38794

vs. )

)

STATE OF NEVADA, )

)

Respondent. )

______________________________)

AMICUS CURIAE AAPS’ REPLY

TO RESPONDENT’S OPPOSITION

COMES NOW AMICUS CURIAE, The Association of American Physicians & Surgeons, Inc. (“AAPS”), by and through its attorney, WILLIAM H. BROWN, ESQ., of the law firm NEEMAN, MILLS & PALACIOS, LTD., and hereby submits this Reply to Respondent’s Opposition with its Motion for Leave to file same, pursuant to Nevada Rule of Appellate Procedure 27(a).

This Reply is based on the papers and pleadings on file herein, and the points and authorities set forth below.

MEMORANDUM OF POINTS AND AUTHORITIES

I.

Identity of Amicus Curiae,

Interest in the Case, and Authority to File

Founded in 1943, the Association of American Physicians and Surgeons, Inc. (“AAPS”) is a national non-profit organization. We are one of the largest purely membership-funded physician associations in the country. Our members are physicians in every specialty, and many practice in Nevada.

AAPS has a direct and vital interest in physicians’ ability to avoid disproportionately harsh, unintended consequences of settlements or plea arrangements. Here, AAPS interests concern the ability of Appellant Mitchel Earl Phillips, D.O. (Dr. Phillips) to withdraw his plea of nolo contendere to “failure to maintain adequate records” based on the draconian unintended consequences.

I.

ARGUMENT

Respondent argues this Court should not have the benefit of AAPS’ Amicus Curiae Brief. In support, Respondent argues AAPS failed to obtain the parties’ consent and the filing was not timely. Additionally, Respondent argues AAPS’ cited authority is inapposite because the manifest injustice was not caused by the State’s affirmative acts and the consequences at issue were collateral, not direct. For the reasons discussed below, these contentions lack merit.

A. Summary of Argument.

Respondent’s Opposition is procedurally defective because it purports to oppose AAPS’ motion for a procedural order. In addition, under NRAP 29, this Court may grant an applicant leave to file an amicus curiae brief; Respondent’s consent is not required. And, as AAPS filed its Brief as quickly as was practicable under the circumstances, AAPS’ Motion should be granted.

Moreover, Respondent has addressed AAPS’ arguments in its Opposition. Thus, it cannot claim prejudice from AAPS’ filing after Appellant’s Fast Track Statement.

As to Respondent’s substantive arguments, affirmative government action is not required to withdraw a plea, especially where, as here, the direct consequences of such a plea are unintended and disproportionately harsh.

B. Respondent’s Opposition is Procedurally Defective.

According to NRAP 27, any party may file a response in opposition to a motion other than one for a procedural order. NRAP 27(a) (emphasis added).

AAPS filed a motion seeking, inter alia, an extension within which to file its Amicus Curiae Brief. Such leave may be granted pursuant to NRAP 29. Nevada Rule of Appellate Procedure 26(b) similarly provides for extensions of time for good cause shown. And a motion under NRAP 26(b) is a procedural order. See NRAP 27(b). Thus, as AAPS’ Motion under NRAP 29 also seeks an extension of time, it is also a procedural order as contemplated by NRAP 27.

Thus, to the extent AAPS’ Motion seeks an extension of time within which to file its amicus brief, NRAP 27(a) precludes Respondent from filing a response in opposition. Accordingly, Respondent’s Opposition is procedurally defective.

C. AAPS Filed Its Motion and Brief as Quickly as Practicable.

AAPS had good cause for filing as it did. It was not able to review Appellant’s brief until after the NRAP 29 deadline had passed. AAPS’ General Counsel was meanwhile required to attend a hearing in Houston, Texas on January 4th in AAPS and Congressman Ron Paul et al. v. HHS et uno., Civ. No. H-01-2963 (SL), and file a 48-page brief in that matter on January 11th. AAPS retained local counsel and filed its brief as quickly as was practicable.

In other cases where AAPS could not review the Appellant’s brief until after the formal deadline had passed, courts have frequently accepted our amicus briefs. See, e.g., Veeck v. Southern Bldg. Code Congress Int’l, Inc., 241 F.3d 398 (5th Cir. 2000); United States v. Sell, Crim. No. 01-1862EMSL (8th Cir.) (decision pending); United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997). This Court should also allow AAPS to file its Brief, especially considering Respondent will not be prejudiced.

D. Allowing AAPS to File its Amicus Curiae Brief Will Not Prejudice Respondent.

Respondent declares that it does not consent to AAPS’ Amicus Curiae Brief (Brief). (Resp. Opp. 1:24-26). But it provides no meaningful basis for withholding consent.

As a preliminary matter, under NRAP 29, this Court may grant an applicant leave to file an amicus curiae brief; Respondent’s consent is not required.

Further, in light of Respondent’s substantive response to the points raised by AAPS, Respondent does not, and cannot, cite any prejudice from the timing of AAPS’ Brief. Nor does Respondent cite a single authority for its position that this Court should deny AAPS’ motion for leave to file its amicus curiae brief. In short, by responding to the substance of AAPS’ brief, Respondent has rendered moot any argument that Respondent had inadequate notice due to the late filing.

Apart from not prejudicing Respondent, AAPS’ Brief more fully develops a host of relevant, far-reaching public policy issues not fully addressed in Appellant’s Fast Track Statement.

Considering the important issues in this case, and the lack of prejudice to Respondent, the Court should have the benefit of AAPS’ Brief.

E. Affirmative Government Misconduct Is Not Required to Withdraw a Plea.

Respondent suggests the authority cited by AAPS is inapposite because AAPS mistakenly relies on the position that the manifest injustice arises from the State’s affirmative action. (Resp. Opp. 2:2-3).

Respondent misses the point: the right to withdraw a plea depends on the consequences to the defendant and his knowledge of those consequences - not whether the government misbehaved. That is, as in other areas of contract and constitutional law, a bargain may be unenforceable even though one party fully performs.

In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court emphasized that courts must “make sure [the defendant] has a full understanding of what the plea connotes and of its consequence,” regardless of any affirmative misconduct by the government. Id. at 243-44 (1969).

Similarly, in Hawaii v. Gomes, 79 Haw. 32, 40, 897 P.2d 959, 967 (1995), the court allowed withdrawal of a nolo contendere plea even though there was no government misconduct.

Respondent also fails to distinguish the other cases by AAPS, which relied on more than affirmative misconduct by government. In Siddiqi v. United States, 98 F.3d 1427 (2d Cir. 1996), for example, the physician suffered from inadequate representation just as Dr. Phillips did here. The court found “[a] miscarriage of justice [had] occurred,” and rather than remand for further proceedings, the court summarily reversed his conviction. Id. at 1427.

As in contract and constitutional law, the touchstone is whether defendant had “full understanding of what the plea connotes and of its consequence.” Boykin, 395 U.S. at 243-44. In agreeing to a nolo contendere plea for a non-felony crime, Dr. Phillips, plainly lacked the requisite knowledge of loss of livelihood. Indeed, the evidence cited by Appellant in his Fast Track Statement demonstrates that Dr. Phillips was affirmatively misled about the consequences of the plea.

Thus, at best, Respondent’s distinctions are superficial factual differences. They fail to address the underlying source of the manifest injustice. Dr. Phillips entered a nolo contendere plea to a non-felony, which by its own terms protects Dr. Phillips from the consequences he subsequently suffered. Government misconduct is not required in such a situation to allow withdrawal of the plea.

F. Nevada Case Law Supports Withdrawal of the Plea.

Respondent suggests that, based on this Court’s decisions in Little v. Warden, 117 Nev. Adv. Opp. No. 69, 34 P.3d 540 (Nev. 2001), Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev. 2000), and Barajas v. State, 115 Nev. 440, 991 P.2d 474 (Nev. 1999), this matter does not require further briefing or argument. (Resp. Opp. 3:1-4). In fact, all three cases support withdrawal of the plea here.

In Little v. Warden, 117 Nev. Adv. Opp. No. 69, 34 P.3d 540 (Nev. 2001), this Court held:

When the district court accepts a defendant's guilty plea, it must act with ’utmost solicitude’ to ensure that a defendant has a full understanding of both the nature of the charges and the direct consequences arising from a plea of guilty. A consequence is deemed ’direct’ if it has ’a definite, immediate and largely automatic effect on the range of the defendant's punishment.’

34 P.3d at 542-43 (citations omitted).

Here, Dr. Phillips did not understand entering the plea would prevent him from practicing medicine. Thus, he lacked the understanding of the direct consequences of the plea as required by Little.

Dr. Phillips’ exclusion from Nevada hospitals was the definite, essentially immediate, and largely automatic result of his nolo contendere plea. Without his plea, no such exclusion would have occurred. With his plea, the exclusion was inevitable. Thus, entirely excluding Dr. Phillips from Nevada hospitals qualifies as a “direct” consequence of Dr. Phillips’ plea under Little.

Accordingly, Dr. Phillips lacked the “full understanding” required by Little. As such, Little affords Respondent little support.

Respondent also relies on Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev. 2000). This reliance is misplaced. In Hart, the court identified three factors in denying withdrawal of a plea:

(1) whether there was an inexcusable delay in seeking relief;

(2) whether an implied waiver has arisen from the defendant's knowing acquiescence in existing conditions; and

(3) whether circumstances exist that prejudice the State.

1 P.3d at 972.

None of these factors support denying withdrawal of the plea here.

In Hart, the defendant waited more than six years after sentencing and provided no reasonable explanation for his delay. Id. at 973. That delay permeated all three factors, in sharp contrast to Dr. Phillips’ effort here to withdraw his plea.

Dr. Phillips acted promptly once the catastrophic consequences of his plea became apparent. Moreover, retrying a murder case, like Hart, relies on vivid and timely recollections; retrying Dr. Phillips for alleged documentation failures does not. Accordingly, the Hart factors weigh in favor of allowing withdrawal of the plea.

Finally, Respondent relies on Barajas v. State, 115 Nev. 440, 991 P.2d 474 (Nev. 1999), which is factually distinguishable. In Barajas, the defendant pleaded guilty to a felony crime. Dr. Phillips pleaded not nolo contendere to a non-felony crime. Moreover, the disproportionate consequences relative to the plea – loss of livelihood here for a mere no-contest, non-felony plea – is far greater for Dr. Phillips than the Barajas defendant.

III.

CONCLUSION

Respondent Opposition is procedurally defective, as it purports to oppose a request for a procedural order. Moreover, Respondent fails to show why this Court should not have the benefit of an amicus curiae brief from AAPS. Accordingly, AAPS requests this Honorable Court grant its Motion for Leave to File Amicus Curiae Brief and Leave for Later Filing.

DATED this ___ day of January, 2002.

NEEMAN, MILLS & PALACIOS, LTD.

By____________________

WILLIAM H. BROWN, ESQ.

Nevada Bar No. 7623

NEEMAN, MILLS & PALACIOS, LTD.

1311 South Maryland Parkway

Las Vegas, Nevada 89104

(702) 822-4444 – office

(702) 822-4440 – fax

Attorneys for Amicus Curiae,

The Association of American

Physicians & Surgeons, Inc.

CERTIFICATE OF MAILING

I hereby certify that on the __ day of January, 2002, I did, pursuant to NRAP 25(1)(b),(c), send via first class mail, postage pre-paid, addressed to the persons named below, a true and correct copy of the foregoing AAPS’ REPLY TO RESPONDENT’S OPPOSITION.

Eighth Judicial District Court

The Honorable Kathy Hardcastle

Clark County Courthouse

200 South Third St.

Las Vegas, Nevada 89155

(702) 455-0139 – fax

Mark N. Kemberling, Esq.

Deputy Attorney General

555 East Washington Ave., #3900

Las Vegas, Nevada 89101

(702) 486-3768 – fax

William B. Terry, Esq.

William B. Terry, Chtd.

530 S. Seventh Street

Las Vegas, Nevada 89101

(702) 385-9788 - fax

Attorney for Appellant,

Mitchel Earl Phillips

Attorneys for APPLICANT,

The Association of American

Physicians & Surgeons, Inc.

_____________________________

Griselda Pena, an employee of

Neeman, Mills & Palacios, Ltd.

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