Washoe Co. Public Defender's Office v. Dist. Ct. (Gammick) ( 2013 )

 Washoe County Alternate Public Defender Jennifer L. Lunt seek a writ
directing the district court to rescind and/or vacate the administrative
order. They argue that it conflicts with (1) the controlling provisions of
the Nevada Revised Statutes, (2) the model plan submitted pursuant to
ADKT 411, and (3) the Sixth Amendment right to effective assistance of
counsel.
The real parties in interest, Washoe County District Attorney
Richard Gammick and Washoe Legal Services (WLS) Executive Director
Paul Elcano, Jr., have filed answers to the petition. The Nevada
Attorneys for Criminal Justice, Inc. has submitted an amicus brief in
support of the petitioners. And we have heard oral argument by the
parties on the issues raised.
Because we conclude that no bright-line rule prohibits the
ECR pilot program and the administrative order can easily be amended to
avoid the statutory, ADKT 411, and Sixth Amendment conflicts, we grant
the petition in part and lift our stay of the ECR pilot program's
implementation.
Standard of review
"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, or to control a manifest abuse or arbitrary or capricious exercise of
discretion." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev.
267 P.3d 777, 779 (2011) (citation omitted). The writ will not
issue, however, if the petitioner has a plain, speedy, and adequate remedy
in the ordinary course of law. NRS 34.170. And, because a writ of
mandamus is an extraordinary remedy, the decision to entertain a petition
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for the writ lies within our discretion. Hickey v. Eighth Judicial Dist.
Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989). In deciding whether
to exercise that discretion, we may consider, among other things, whether
the petition raises an important issue of law that needs clarification.
Armstrong, 127 Nev. at , 267 P.3d at 779-80. Because the instant
petition challenges defects in the administrative order that cannot be
adequately remedied in the ordinary course of law and raises important
issues of law that need clarification, we exercise our discretion to consider
its merits.
Statutory conflict
Nothing in the Nevada Revised Statutes prohibits the
implementation of an ECR pilot program. However, the relevant statutes
plainly prohibit the district court from appointing counsel other than the
public defender to represent indigent defendants unless the public
defender is disqualified or other good cause exists. In interpreting those
statutes, we must give them their plain meaning, construe them as a
whole, and read them in a manner that makes the words and phrases
essential and the provisions consequential. Mangarella v. State, 117 Nev.
130, 133, 17 P.3d 989, 991 (2001). "Statutes within a scheme and
provisions within a statute must be interpreted harmoniously with one
another in accordance with the general purpose of those statutes and
should not be read to produce unreasonable or absurd results."
Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1136 (2001). And
when "a general statutory provision and a specific one cover the same
subject matter, the specific provision controls." In re Resort at Summerlin
Litigation, 122 Nev. 177, 185, 127 P.3d 1076, 1081 (2006).
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NRS 7.115, NRS 171.188, and NRS 260.060 address the
appointment of counsel for indigent criminal defendants. NRS 7.115 and
NRS 171.188(3) are specific statutes that expressly require the court to
appoint the public defender unless the public defender is "disqualified,"
"unable to represent the defendant," or "other good cause appears." See
Mathews v. State, 91 Nev. 682, 684, 541 P.2d 906, 907 (1975) ("[W]hen an
eligible indigent takes an appeal . . . , the appeal must be handled by the
county public defender; except, of course, in those cases where the county
defender cannot act or is otherwise disqualified." (emphasis added)). NRS
260.060, on the other hand, is a general statute that allows the court to
appoint counsel "other than, or in addition to, the public defender" for
cause if the appointment is consistent with "the laws of this state
pertaining to the appointment of counsel to represent indigent criminal
defendants." See generally Sechrest v. State, 101 Nev. 360, 367, 705 P.2d
• 626, 631 (1985) (the permissive language of NRS 260.060 indicates the
appointment of additional counsel is discretionary with the court),
overruled on other grounds by Harte v. State, 116 Nev. 1054, 1067, 13 P.3d
420, 429 (2000). As the specific statutory provisions pertaining to the
appointment of counsel to represent indigent criminal defendants, NRS
7.115 and NRS 171.188(3) are the controlling statutes.
The administrative order manifests an erroneous
interpretation and application of these statutes by allowing the district
court to appoint WLS counsel to represent indigent defendants without
any showing that the public defender is unable to represent the indigent
defendants or good cause exists to justify the WLS appointment. This
aspect of the administrative order therefore demonstrates a manifest
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abuse of discretion. See Armstrong, 127 Nev. at , 267 P.3d at 780
(defining manifest abuse of discretion for purposes of mandamus relief).
The ECR pilot program can be salvaged by deleting the provisions in the
administrative order that address the appointment Of WLS counsel and
adding a provision that requires the appointment of the public defender to
represent indigent defendants in all cases assigned to the ECR pilot
program except as provided in NRS 7.115 and NRS 171.188(3).
ADKT 411 conflict
We have entered several orders in ADKT 411 adopting the
recommendations of the Indigent Defense Commission; nothing in these
orders prohibits the implementation of an ECR pilot program. The
original order announced the standard for determining indigency, required
each judicial district to formulate an administrative plan for indigent
representation,' promulgated indigent defense performance standards,
and mandated studies to establish a reasonable caseload standard for
public defenders. See ADKT 411 (Order, January 4, 2008). Following a
public hearing on the original order, we entered a second order that
promulgated a significantly revised version of the performance standards
and emphasized that the standards are a guide and are not mandatory
criteria in all cases. See ADKT 411 (Order, October 16, 2008).
The administrative order does not conflict with the revised
performance standards. The U.S. Supreme Court has stated that "[n]
particular set of detailed rules for counsel's conduct can satisfactorily take
"The parties have referred to this indigent representation plan as
the "model plan."
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account of the variety of circumstances faced by defense counsel or the
range of legitimate decisions regarding how best to represent a criminal
defendant." Strickland v. Washington, 466 U.S. 668, 688-89 (1984). The
revised performance standards plainly state that they are guides, they are
not to be undertaken automatically and should be tailored to the
requirements of a particular case, and their relevance to ineffective-
assistance claims depends upon all of the case's circumstances. See ADKT
411 (Order, October 16, 2008) (Exhibit A, Standard 1).
Although the administrative order does not conflict with the
revised performance standards, it does conflict with the Second Judicial
District Court's model plan by allowing the district court to participate in
the appointment of private counsel. However, because the model plan has
not yet been reviewed and approved by the Indigent Defense Commission
and this court, the conflict is academic. Moreover, amending the
administrative order to require the appointment of the public defender to
represent indigent defendants in all cases assigned to the ECR pilot
program, except as provided in NRS 7.115 and NRS 171.188(3), will
eliminate this conflict.
Sixth Amendment conflict
Nothing in the Sixth Amendment prohibits the
implementation of an ECR pilot program, and the administrative order
does not prohibit counsel from seeking additional discovery or conducting
further investigation. However, the administrative order does interfere
with the independence of counsel.
Defendants have a Sixth Amendment right to effective
assistance of counsel during the negotiation of a plea bargain. Missouri v.
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Frye, 566 U.S. „ 132 S. Ct. 1399, 1407-08 (2012). Counsel provides
effective assistance when his performance is reasonable under prevailing
professional norms. Strickland, 466 U.S. at 688. To this end, "counsel has
a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Id. at 691. "Counsel's
actions are usually based . . . on informed strategic choices made by the
defendant and on information supplied by the defendant," id., and
counsel's decision to advise a quick plea bargain may be reasonable under
the circumstances, see Premo v. Moore, 562 U.S. „ 131 S. Ct. 733,
742-43 (2011). Because the administrative order does not address
discovery or investigation, any claim that counsel was ineffective for
failing to seek additional discovery or adequately investigate the ECR
pilot program cases must be resolved on a case-by-case basis. See
Rompilla v. Beard, 545 U.S. 374, 393-94 (2005) (O'Connor, J., concurring)
(noting the Court's "longstanding case-by-case approach to determining
whether an attorney's performance was unconstitutionally deficient under
Strickland").
In contrast, rules that "interfere with the constitutionally
protected independence of counsel and restrict the wide latitude counsel
must have in making tactical decisions" may constitute an "[a]ctual or
constructive denial of assistance of counsel [that] is legally presumed to
result in prejudice." Strickland, 466 U.S. at 689, 692. The administrative
order plainly interferes with the independence of counsel by directing the
district court to appoint the public defender as co-counsel and then
ordering "that the public defender shall have no further responsibilities."
However, we conclude that amending the administrative order to require
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the appointment of the public defender to represent indigent defendants in
all cases assigned to the ECR pilot program, except as provided in NRS
7.115 and NRS 171.188(3), will eliminate this interference.
Conclusion
We conclude that no bright-line rule prohibits implementing
an ECR pilot program. However, for the reasons stated above, the district
court's administrative plan for implementing the ECR pilot program
cannot stand in its current form and must be amended if it is to be
implemented. 2 The district court would have to make the following
changes to its administrative order: (1) delete the provisions interpreting
NRS 7.115, NRS 171.188, and NRS 260.060; (2) delete the provisions
addressing the appointment, funding, and duties of WLS counsel; (3) add a
provision requiring the district court to appoint the Washoe County Public
Defender to represent indigent defendants in all cases assigned to the
ECR pilot program, except as provided in NRS 7.115 and NRS 171.188(3);
and (4) modify the provision that states, "The ECR Pilot Program shall be
administered by the Washoe County District Attorney" to include "with
the cooperation of the Washoe County Public Defender." Our order
granting a temporary stay tolled the period during which the ECR pilot
program was to be implemented. We lift the stay. The district court may
2We note that it is unclear how the district court has jurisdiction to
appoint counsel for indigent defendants without an indictment or
information. See Nev. Const. art. 1, § 8; NRS 173.015; Cairns v. Sheriff,
89 Nev. 113, 116, 508 P.2d 1015, 1017 (1973). It is our understanding that
jurisdiction is being waived as part of the plea negotiations, but the issue
is not before us and we express no opinion as to whether such a waiver
would be proper or enforceable.
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implement the ECR pilot program for the remainder of that period after
the administrative order has been amended. Accordingly, we
ORDER the petition GRANTED IN PART and DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS
instructing the Second Judicial District Court to vacate Administrative
Order 2012-07 or amend Administrative Order 2012-07 in accordance with
the directions provided in this order.
J.
Douglas
J.
Saitta
cc: Hon. David A. Hardy, District Judge
Hon. Jerome Polaha, District Judge
Hon. Brent T. Adams, District Judge
Hon. Scott N. Freeman, District Judge
Hon. Jennifer Togliatti, District Judge
Washoe County Alternate Public Defender
Washoe County Public Defender
Washoe Legal Services
9
Washoe County District Attorney
Allen Lichtenstein
Franny A. Forsman
Clark County Public Defender
Marc Picker, Esq., Ltd.
Washoe District Court Clerk
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