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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.
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IN THE SUPREME COURT OF THE STATE OF NEVADA
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MITCHELL EARL PHILLIPS,
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Appellant,
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vs.
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)
STATE OF NEVADA,
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Respondent.
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______________________________)
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AMICUS CURIAE AAPS’ REPLY
TO RESPONDENT’S OPPOSITION
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CASE NO.: 38794
COMES
Physicians
NOW
&
AMICUS
Surgeons,
CURIAE,
Inc.
The
Association
(“AAPS”),
by
and
of
American
through
its
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attorney, WILLIAM H. BROWN, ESQ., of the law firm NEEMAN, MILLS
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& PALACIOS, LTD., and hereby submits this Reply to Respondent’s
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Opposition with its Motion for Leave to file same, pursuant to
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Nevada Rule of Appellate Procedure 27(a).
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This Reply is based on the papers and pleadings on file
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herein, and the points and authorities set forth below.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
IDENTITY OF AMICUS CURIAE,
INTEREST IN THE CASE, AND AUTHORITY TO FILE
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Founded in 1943, the Association of American Physicians and
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Surgeons, Inc. (“AAPS”) is a national non-profit organization.
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We are one of the largest purely membership-funded physician
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associations in the country.
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every specialty, and many practice in Nevada.
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Our members are physicians in
AAPS has a direct and vital interest in physicians’ ability
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to avoid disproportionately harsh, unintended consequences of
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settlements or plea arrangements.
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the
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Phillips) to withdraw his plea of nolo contendere to “failure to
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ability
maintain
of
adequate
Appellant
records”
Here, AAPS interests concern
Mitchel
based
on
Earl
the
Phillips,
draconian
D.O.
(Dr.
unintended
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consequences.
I.
ARGUMENT
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Respondent argues this Court should not have the benefit of
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AAPS’ Amicus Curiae Brief.
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failed to obtain the parties’ consent and the filing was not
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timely.
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In support, Respondent argues AAPS
Additionally, Respondent argues AAPS’ cited authority
is inapposite because the manifest injustice was not caused by
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the State’s affirmative acts and the consequences at issue were
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collateral, not direct.
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contentions lack merit.
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For the reasons discussed below, these
A. Summary of Argument.
Respondent’s Opposition is procedurally defective because
it purports to oppose AAPS’ motion for a procedural order.
In
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addition, under NRAP 29, this Court may grant an applicant leave
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to file an amicus curiae brief; Respondent’s consent is not
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required.
And,
practicable
under
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as
AAPS
the
filed
its
Brief
circumstances,
as
AAPS’
quickly
Motion
as
should
was
be
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granted.
Moreover, Respondent has addressed AAPS’ arguments in its
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Opposition.
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after Appellant’s Fast Track Statement.
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As
Thus, it cannot claim prejudice from AAPS’ filing
to
Respondent’s
substantive
arguments,
affirmative
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government action is not required to withdraw a plea, especially
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where,
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unintended and disproportionately harsh.
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as
here,
the
direct
consequences
of
such
a
plea
are
B. Respondent’s Opposition is Procedurally Defective.
According to NRAP 27, any party may file a response in
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opposition to a motion other than one for a procedural order.
NRAP 27(a) (emphasis added).
AAPS
filed
a
motion
seeking,
inter
alia,
within which to file its Amicus Curiae Brief.
granted pursuant to NRAP 29.
an
extension
Such leave may be
Nevada Rule of Appellate Procedure
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26(b) similarly provides for extensions of time for good cause
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shown.
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And a motion under NRAP 26(b) is a procedural order.
See NRAP 27(b).
an
extension
Thus, as AAPS’ Motion under NRAP 29 also seeks
of
time,
it
is
also
a
procedural
order
as
contemplated by NRAP 27.
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Thus, to the extent AAPS’ Motion seeks an extension of time
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within which to file its amicus brief, NRAP 27(a) precludes
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Respondent from filing a response in opposition.
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Accordingly,
Respondent’s Opposition is procedurally defective.
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C. AAPS Filed Its Motion and Brief as Quickly as Practicable.
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AAPS had good cause for filing as it did.
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It was not able
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to review Appellant’s brief until after the NRAP 29 deadline had
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passed.
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a
AAPS’ General Counsel was meanwhile required to attend
hearing
in
Houston,
Texas
on
January
4th
in
AAPS
and
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Congressman Ron Paul et al. v. HHS et uno., Civ. No. H-01-2963
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(SL), and file a 48-page brief in that matter on January 11th.
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AAPS retained local counsel and filed its brief as quickly as
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was practicable.
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In other cases where AAPS could not review the Appellant’s
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brief until after the formal deadline had passed, courts have
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frequently accepted our amicus briefs.
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Southern Bldg. Code Congress Int’l, Inc., 241 F.3d 398 (5th Cir.
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2000); United States v. Sell, Crim. No. 01-1862EMSL (8th Cir.)
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(decision pending);
See, e.g.,
Veeck v.
United States v. Rutgard, 116 F.3d 1270 (9th
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Cir. 1997).
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Brief, especially considering Respondent will not be prejudiced.
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D. Allowing AAPS to File its Amicus Curiae Brief Will Not
Prejudice Respondent.
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This Court should also allow AAPS to file its
Respondent
declares
that
Amicus Curiae Brief (Brief).
it
does
not
consent
to
(Resp. Opp. 1:24-26).
AAPS’
But it
provides no meaningful basis for withholding consent.
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As a preliminary matter, under NRAP 29, this Court may
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grant
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Respondent’s consent is not required.
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an
applicant
leave
to
file
an
amicus
curiae
brief;
Further, in light of Respondent’s substantive response to
the points raised by AAPS, Respondent does not, and cannot, cite
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any
prejudice
from
the
timing
of
AAPS’
Brief.
Nor
does
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Respondent cite a single authority for its position that this
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Court should deny AAPS’ motion for leave to file its amicus
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curiae brief.
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In short, by responding to the substance of AAPS’
brief, Respondent has rendered moot any argument that Respondent
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had inadequate notice due to the late filing.
Apart
from
not
prejudicing
Respondent,
AAPS’
Brief
more
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fully develops a host of relevant, far-reaching public policy
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issues not fully addressed in Appellant’s Fast Track Statement.
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Considering the important issues in this case, and the lack
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of prejudice to Respondent, the Court should have the benefit of
AAPS’ Brief.
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E. Affirmative Government Misconduct Is Not Required to
Withdraw a Plea.
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Respondent
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suggests
the
authority
cited
by
AAPS
is
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inapposite because AAPS mistakenly relies on the position that
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the
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action.
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manifest
injustice
arises
from
the
State’s
affirmative
(Resp. Opp. 2:2-3).
Respondent misses the point: the right to withdraw a plea
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depends on the consequences to the defendant and his knowledge
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of those consequences - not whether the government misbehaved.
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That is, as in other areas of contract and constitutional law, a
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bargain
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may
be
unenforceable
even
though
one
party
fully
performs.
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In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme
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Court emphasized that courts must “make sure [the defendant] has
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a
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consequence,” regardless of any affirmative misconduct by the
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full
understanding
government.
of
what
the
plea
connotes
and
of
its
Id. at 243-44 (1969).
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Similarly, in Hawaii v. Gomes, 79 Haw. 32, 40, 897 P.2d
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959,
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contendere plea even though there was no government misconduct.
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967
(1995),
the
court
allowed
withdrawal
of
a
nolo
Respondent also fails to distinguish the other cases by
AAPS,
which
relied
on
more
than
affirmative
misconduct
by
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government.
In Siddiqi v. United States, 98 F.3d 1427 (2d Cir.
1996),
example,
for
the
physician
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suffered
from
inadequate
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representation just as Dr. Phillips did here.
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“[a] miscarriage of justice [had] occurred,” and rather than
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The court found
remand for further proceedings, the court summarily reversed his
conviction.
Id. at 1427.
As in contract and constitutional law, the touchstone is
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whether
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connotes and of its consequence.”
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In agreeing to a nolo contendere plea for a non-felony crime,
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defendant
had
“full
understanding
of
what
the
plea
Boykin, 395 U.S. at 243-44.
Dr. Phillips, plainly lacked the requisite knowledge of loss of
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livelihood.
Indeed, the evidence cited by Appellant in his Fast
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Track Statement demonstrates that Dr. Phillips was affirmatively
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misled about the consequences of the plea.
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Thus, at best, Respondent’s distinctions are superficial
factual differences.
They fail to address the underlying source
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of
the
manifest
injustice.
Dr.
Phillips
entered
a
nolo
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contendere plea to a non-felony, which by its own terms protects
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Dr.
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Government misconduct is not required in such a situation to
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Phillips
from
the
consequences
he
subsequently
suffered.
allow withdrawal of the plea.
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F. Nevada Case Law Supports Withdrawal of the Plea.
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Respondent suggests that, based on this Court’s decisions
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in Little v. Warden, 117 Nev. Adv. Opp. No. 69, 34 P.3d 540
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(Nev. 2001), Hart v. State, 116 Nev. 558, 1 P.3d 969 (Nev.
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2000), and Barajas v. State, 115 Nev. 440, 991 P.2d 474 (Nev.
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1999),
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argument.
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this
matter
does
not
(Resp. Opp. 3:1-4).
require
further
briefing
or
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).
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Here, Dr. Phillips did not understand entering the plea
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would prevent him from practicing medicine. Thus, he lacked the
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understanding of the direct consequences of the plea as required
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by Little.
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Dr.
Phillips’
exclusion
from
Nevada
hospitals
was
the
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definite, essentially immediate, and largely automatic result of
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his nolo contendere plea.
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would
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inevitable.
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have
occurred.
Without his plea, no such exclusion
With
his
plea,
the
exclusion
was
Thus, entirely excluding Dr. Phillips from Nevada
hospitals qualifies as a “direct” consequence of Dr. Phillips’
plea under Little.
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Accordingly, Dr. Phillips lacked the “full understanding”
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required by Little.
support.
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Respondent also relies on Hart v. State, 116 Nev. 558, 1
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P.3d 969 (Nev. 2000).
In Hart, the
(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.
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None of these factors support denying withdrawal of the
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plea here.
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This reliance is misplaced.
court identified three factors in denying withdrawal of a plea:
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As such, Little affords Respondent little
In Hart, the defendant waited more than six years after
sentencing and provided no reasonable explanation for his delay.
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Id. at 973.
contrast to Dr. Phillips’ effort here to withdraw his plea.
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That delay permeated all three factors, in sharp
Dr.
Phillips
acted
promptly
once
consequences of his plea became apparent.
murder
case,
like
Hart,
relies
on
the
catastrophic
Moreover, retrying a
vivid
and
timely
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recollections; retrying Dr. Phillips for alleged documentation
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failures does not.
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of allowing withdrawal of the plea.
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Accordingly, the Hart factors weigh in favor
Finally, Respondent relies on Barajas v. State, 115 Nev.
440,
991
P.2d
474
(Nev.
1999),
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which
is
factually
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distinguishable.
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felony crime.
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In Barajas, the defendant pleaded guilty to a
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 nocontest, non-felony plea – is far greater for Dr. Phillips than
the Barajas defendant.
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III.
CONCLUSION
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Respondent
Opposition
is
procedurally
defective,
as
it
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purports to oppose a request for a procedural order.
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Respondent fails to show why this Court should not have the
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benefit of an amicus curiae brief from AAPS.
Moreover,
Accordingly, AAPS
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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.
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CERTIFICATE OF MAILING
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I hereby certify that on the __ day of January, 2002, I
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did, pursuant to NRAP 25(1)(b),(c), send via first class mail,
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postage pre-paid, addressed to the persons named below, a true
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and correct copy of the foregoing AAPS’ REPLY TO RESPONDENT’S
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OPPOSITION.
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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
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Attorneys for APPLICANT,
The Association of American
Physicians & Surgeons, Inc.
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_____________________________
Griselda Pena, an employee of
Neeman, Mills & Palacios,
Ltd.
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