Washoe Co. Public Defender's Office v. Dist. Ct. (Gammick)
Opinion
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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(0) 1947A 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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(0) 1947A 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 ineffectiveassistance claims depends upon all of the case's circumstances. See ADKT 411 (Order, October 16, 2008) (Exhibit A, Standard 1).
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