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 Applicant,
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. )
______)
APPLICANT AAPS’ MOTION FOR LEAVE TO FILE A REPLY TO RESPONDENT’S OPPOSITION AMICUS CURIAE REPLY BRIEF MOTION AND FOR LEAVE FOR LATER FILING
COMES NOW AMICUS CURIAEApplicant, The Association of American Physicians & Surgeons, Inc. (“AAPS”), by and through local counsel, WILLIAM H. BROWN, ESQ., of the law firm NEEMAN, MILLS & PALACIOS, LTD., and hereby moves, pursuant to Nevada Rule of Appellate Procedure 27(a)9, for leave to file the accompanying amicus curiae brief and for leave for later filingleave to file the accompanying Reply to Respondent’s Opposition.
This Motion is based on the papers and pleadings on file herein, and the points and authorities set forth below.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTEREST OF THE APPLICANT
Founded in 1943, AAPS is a national non-profit organization composed of thousands of physician members in every specialty. AAPS is one of the largest entirely membership-funded physician associations in the country, and regularly files amicus curiae briefs in important cases. Like this one. See, e.g., United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997).
Respondent recently filed a brief inan opposition (Opposition) to AAPS’ Motion for leave to file an amicus curiae brief (Motion). Respondent’s Opposition addresses to the substantive arguments in AAPS’s initial brief in this action Motion and accompanying amicus curiae brief (Brief).AAPS recently became aware this case was before the Court. Accordingly, AAPS requests leave to file a rReply to Respondent’s oOpposition briefsupplement the arguments and authority in Appellant’s Fast Track Statement.
II.
AN AMICUS CURIAEA REPLY BRIEF TO RESPONDENT’S OPPOSITION IS DESIRABLE HERE
This case concerns the termination of a physician’s livelihood based on a plea of nolo contendere to a non-felony offense. This draconian impact involvess issues directly related to AAPS’ organizational interests and those of its individual members. Thus, AAPS has a direct interest in this case and the Court would benefit from the additional insight AAPS can provide in this an amicus curiae reply briefits Reply.
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A. AAPS’ Interests.
AAPS is dedicated to defending the patient-physician relationship and the ability of protecting patients’ ability to select their owna physician to protecting patients’ ability to select their preferred physician without undue interference by government or managed care. AAPS consistently files amicus curiae briefs in defense of free enterprise in medicine and against government overreaching, in order to protect patients, physicians, and the public in general, which is essential to physicians, patients, and the public in general.
In addition to these organizational interests, this case directly affects AAPS members. Some members have been offered “no contest” pleas similar to Dr. Phillips’ (Dr. Phillips) and need to be confident that such pleas mean what they say – to wit, a physician will not lose his ability to practice medicine when he reserves his rights by pleading nolo contendere to a non-felony charge.thus, may be similarly affected by the unintended consequences of such agreements.
As outlined below, AAPS’ accompanying Brief will address these concerns and more fully develop these issues for the Court.
B. Respondent Fails to Distinguish AAPS’s AuthoritiesWithdrawal of the Plea.
C.
Waivers of rights made in reliance on a fundamental mistake are not effective if in reliance on a fundamental mistake. This basic principle of justice applies to plea bargains just as it applies to waivers of rights in contract and constitutional law. As the Hawaii Supreme Court emphasized:
A plea agreement is essentially a contract entered into between the State and the defendant, in which the defendant agrees to plead guilty or no contest to a charge and to forego certain constitutional rights (including the right to trial) in exchange for which the State promises some form of leniency or cooperation in prosecution. Indeed, courts have often looked to contract law analogies in determining the rights and obligations of the parties to a plea agreement. ..[.] [B]ecause the plea negotiation process implicates constitutional considerations -- including the fairness and voluntariness of the plea -- we have recognized that resort to contract principles cannot solely be determinative of the rights and duties comprising the plea bargain.”
Hawaii v. Adams, 76 Haw. 408, 412, 879 P.2d 513, 517 (1994) (citations omitted).
However, Respondent, however, overlooks the fundamental nature of a plea bargain and argues that only an “affirmative action” of violation by the government can justify withdrawal of a plea. Resp. Mem. at 2.(Resp. Opp. 2:2-3). Under the Respondent’s theory, not even the incredibly harsh penalty here of unintended loss of livelihood can justify withdrawal of a Dr. Phillips’ misdemeanor plea of “no contest.” Respondent’s novel theory is unsupported by the principles in the decisions it cites.
In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court emphasized that courts must “make sure he[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 thereeven though there was no affirmative act by the government but the Court nevertheless held in favor of a defendant seeking to withdraw a nolo contendere plea.
Respondent also fails to distinguish the other cases cited by AAPS, which reliedy 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. The relevant miscarriage of justice is more a function of the impact on defendant than on any affirmative government acts.
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. Dr. Phillips, in agreeing to a nolo contendere plea for a non-felony crime, 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.
Accordingly, he lacked the understanding required by Boykin. Thus, Tthe District Court’s refusal to allow Dr. Phillips to withdraw his plea constituted an abuse of discretion.
D. Respondent’s Own Own Authorities Support Withdrawal of the Plea Here.
Contrary to Respondent’s contention, the cases cited by Respondent’s cited precedents all support withdrawal of the plea here, contrary to Respondent’s argument.
Respondent relies on Little v. Warden, 117 Nev. Adv. Opp. No. 69, 34 P.3d 540 (Nev. 2001). In Little,, but there the Nevada Supreme Courtthis Court held that:
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).
The exclusion of Dr. Phillips from Nevada hospitals squarely qualifies as a “direct” consequence under this definition. : iIt was definite, it was essentially immediate, and it was the largely automatic result of his nolo contendere plea. Without his plea, no such exclusion would have occurred; with his plea, there was no way to avoid the exclusion. Dr. Phillips utterly lacked the “full understanding” required by Little v. Warden above.
Respondent also relies on Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev. 2000). In Hart, , but that Courtthis Court identified three factors that militate in favor of withdrawal of the plea here:
(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.
(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.
Here, Dr. Phillips acted promptly in seeking relief and did not knowingly acquiesce in the existing conditions. Meanwhile, the State lacks substantial prejudice comparablecompared to the harm to Dr. Phillips in losing his livelihood over a “no contest” non-felony plea is manifest. In contrast to violent crime where the State may be prejudiced by a delayed retrial, the plea at issue here is “failure to maintain adequate records.” There is no meaningful prejudice to the State in retrying that charge.
Finally, Respondent relies on Barajas v. State, 115 Nev. 440, 991 P.2d 474 (Nev. 1999), which is factually distinguishable. Barajas involved a where the defendant pleaded guilty plea to a felony crime, not a nolo contendere plea to the non-felony crime, as here. Moreover, the disproportionate consequences relative to the plea – loss of livelihood for a mere no-contest, non-felony plea – is far greater for Dr. Phillips than the Barajas defendant.Moreover, the consequences of Dr. Phillips’ plea is loss of livelihood, which is proportionally far greater of a harm with respect to the plea than in Barajas.
E. Appellee, iIn Responding to the Substance of AAPS’s Brief, Respondent Has Mooted any Basis for Excluding it.
Respondent declares that it does not consent to AAPS’s Amicus Curiae Brief, but provides no reason for withholding such consent. (Resp. Opp. 1:24-26).Resp. Mem. at 1. Respondent does not, and cannot, cite any prejudice resultant from the timing of AAPS’s brief, in light of Respondent’s substantive response to the points raised by AAPS. Nor does Respondent cite a single decision for its view that this Court should deny AAPS’s motion for leave to file its amicus curiae brief. In short, Respondent has mooted, by responding to the substance of AAPS’s brief, any argument that Respondent had inadequate notice due to the late filing.
Moreover, AAPS had good cause for filing as it did. It was not able to review Appellant’s briefFast Track Statement, which an AAPS’ amicus brief supplements, until after the R.A.P.NRAP 29 deadline had passed. AAPS’s 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 Nevada counsel and filed its brief as quickly as it could, and evidently Respondent had ample notice to respond.
Dr. Phillips failed to understand the consequences of the plea. Given this lack of requisite understanding, the District Court’s denial of Dr. Phillips’ Motion to Withdraw the Plea constituted an abuse of discretion.
Plea agreements are analogous to contracts, with an added gloss of constitutional rights. See Hawaii v. Adams, 76 Haw. 408, 412 879 P.2d 513, 517 (1994)(citing State v. Yoon, 66 Haw. 342, 348, 662 P.2d 1112, 1116 (1983)).
Thus, a guilty plea must be based on “a full understanding of what the plea connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 243-44 (1969). Absent this understanding, courts have either reversed the conviction or allowed withdrawal of the plea.
In Siddiqi v. United States, 98 F.3d 1427 (2d Cir. 1996), a convicted physician claimed he was inadequately represented. On appeal, the Federal Court of Appeals summarily reversed the conviction, finding a “miscarriage of justice [had] occurred.” Id. at 1427. Other courts have simply allowed defendants to withdraw the plea.
Both the Arizona and Hawaii Supreme Courts, for example, have allowed defendants to withdraw pleas when there was a similar mistake or an unintended harsh consequence.
In Hawaii v. Adams, 76 Haw. 408, 879 P.2d 513 (1994), a physician pleaded guilty to one count of Medicaid fraud. The physician misunderstood the “severity of the potential penalty” and sought to withdraw his plea. 76 Haw. at 410, 879 P.2d at 515. The lower court lower rejected his attempt. Id.
On appeal, the state Supreme Court reversed, stating “either resentencing or withdrawal of a plea may be the appropriate remedy depending on the defendant’s particular circumstances.” 76 Haw. at 415, 879 P.2d at 519 (footnote and citation omitted).
The Arizona Supreme Court also allowed withdrawal of a guilty plea on similar grounds. In Arizona v. Chavez, 130 Ariz. 438, 636 P.2d 1220 (Ariz. 1981) (en banc), the court held:
if the parties to a plea bargain were mistaken as to the existence of a material factor which caused them to enter the agreement, and this material factor is discovered after sentencing, the defendant can withdraw his guilty plea if such action is necessary to prevent manifest injustice.
130 Ariz. at 439, 636 P.2d at 1221 (emphasis added).
The court added that, by analogy, “the parties suffered from a mutual mistake of a material fact.” 130 Ariz. at 439, 636 P.2d at 1221. See also Arizona v. Stevens, 154 Ariz. 510, 514, 744 P.2d 37, 41 (Ariz. Ct. App. 1987) (holding guilty plea lacked requisite basis where defendant and state were both mistaken about material factor).
The same is true here. The requisite understanding of what the plea involved and its consequences was markedly absent. As described in Appellant’s Fast Track Statement, Dr. Phillips was advised by his attorney the plea would not affect his ability to practice medicine.
However, the plea not only completely deprived Dr. Phillips of his practice and livelihood,[1] but had broader repercussion as well. Because he could no longer receive compensation from his patients’ insurers, the plea resulted in an unjustified intrusion into the doctor-patient relationship. This in turn caused an unwarranted interference in free enterprise in medicine by limiting his patients’ choice in selecting their preferred provider. None of these collateral consequences was contemplated by Dr. Phillips when he entered the plea. Nor did the State intend to wholly exclude Dr. Phillips from practicing medicine.