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« | Home | »

Nick Diaz’s fight for freedom to fight again is now in court

By Zach Arnold | May 13, 2012

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On Monday at 10:30 AM in a Las Vegas courtroom, Nick Diaz’s high-powered Las Vegas attorney Ross Goodman will attempt to get an injunction to stop an indefinite suspension of his client by the Nevada State Athletic Commission.

The last legal filing before Monday’s court battle.

*****

REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION ON ORDER SHORTENING TIME.

I. INTRODUCTION

Defendant’s Opposition Brief (the “Opposition”) asks this Court to endow Defendant with an unlimited power of interim suspension — and to relieve Defendant from the express limitations that the legislators have imposed in connection with suspensions under NRS 467.117.

Defendant is seeking judicial confirmation of an asserted power to suspend a license:

a) for any reason, with no limitation, and

b) for any duration of time, with no limitation.

Defendant’s unjustified assertion of such unlimited powers must not be condoned by this Court.

An untrammelled power to unilaterally impose indefinite and unlimited interim suspensions, as asserted by Defendant, is inconsistent with express statutory law governing all State administrative agencies, including Defendant, and would constitute a clear violation of licensees’ property rights.

Unless this Court is prepared to confer upon Defendant the unlimited and unprecedented powers claimed by the Defendant, Plaintiff is entitled to the relief sought in this motion.

Defendant’s Opposition expedites the adjudication of Plaintiff’s motion in two ways.

First, Defendant has failed to respond to many of Plaintiff’s allegations and has thereby admitted the merits of those allegations. Second, in connection with its responses to those few allegations that Defendant has elected to put in issue, Defendant has demonstrably misconstrued the law as it applies to the facts of this case.

In broad outline, Defendant’s position as set forth in its Opposition is as follows:

a) Defendant asserts that Diaz has failed to exhaust his available administrative remedies in connection with the summary suspension and the NSAC’s failure to convene a final hearing, so these proceedings are premature.

b) Defendant asserts that a preliminary injunction should not be granted in this case because:

i. Diaz is unlikely to succeed on the merits of his defense of the disciplinary complaint made against him in the NSAC proceedings; and

ii. Diaz has not established irreparable harm, as he is “retired” from competition.

In response, it is Plaintiff’s position, as elaborated below, that:

a) The issues raised in Plaintiff’s complaint are ripe for adjudication. Defendant is mistaken to suggest that the Court is powerless to intervene and provide relief from unlawful administrative process. Plaintiff’s complaint puts in issue the NSAC administrative procedure itself, and therefore the doctrine of exhaustion of administrative remedies has no application. Further, there exists no administrative remedy for the Commission’s failure to convene a prompt hearing or to seek relief from an administrative agency in respect of that same agency’s violation of a licensee’s statutory and due process rights.

b) Defendant’s position misconceives the applicable legal test for a preliminary injunction. The issue is not whether Plaintiff or the Commission is more likely to be successful in connection with the underlying disciplinary proceedings. The issue is whether Plaintiff is likely to succeed on the merits of his Claim commenced in this Court — sufficient to ground the preliminary injunctive relief sought. On that issue, Defendant has said nothing. Defendant’s failure to dispute Plaintiff’s allegations, as enumerated in further detail below, is an admission that the allegations are meritorious and justify the preliminary relief sought. Further, Defendant has adduced no admissible evidence that could rebut Plaintiff’s claim of irreparable harm.

II. DEMONSTRABLE ERRORS IN THE OPPOSITION BRIEF

A. Defendant Expressly Misstates the Statutory Requirements of NRS 467.117

One of the several bases on which Plaintiff seeks preliminary relief in these proceedings is that the NSAC has purported to suspend Plaintiff under NRS 467.117 in the absence of any finding that such suspension is necessary for the protection of the public welfare and without any evidence supporting any such finding.

Defendant has not taken the position that a temporary suspension of Diaz’s license is necessary for the protection of the public welfare, that there was evidence before the NSAC that could ground such a finding, or that it made such a finding.

Plaintiff’s allegations are therefore to be taken as admitted as meritorious. See EDCR Rule 2.20(e).

However, it cannot be left unnoticed that Defendant plainly misstates the statutory threshold issue for a suspension under NRS 467.117: “When a licensee violates NRS or NAC Chapter 467 and some action is necessary to protect the public welfare or the best interests of the sport…” [emphasis added]. (See Opposition, p. 7.)

That is a plain misstatement of the statute.

NRS 467.117 permits a suspension if such “action is necessary to protect the public welfare and the best interests of the sports regulated ..” [emphasis added].

By changing a conjunctive statutory requirement (“and”) to a disjunctive requirement (“or”), Defendant has simply rewritten the statute to undermine Plaintiff’s position, and has thereby either deliberately or inadvertently attempted to mislead this Court.

B. The NSAC’s Excuse For Delay Is Premised On A Demonstrably Mistaken View of California Law

Defendant has tried to excuse its delay in convening a hearing on the basis that Diaz must produce a `medical marijuana card’ to prove full compliance with the registry laws for medical marijuana in California. (See Opposition, p. 10). Defendant has admitted that a disciplinary hearing was planned for April 24, 2012, but “the [Plaintiffs] Response made that impossible” because Plaintiff alleged that his use of marijuana was “legal in both Nevada and California.” (See Opposition, p. 9.) Defendant persists in the mistaken view that Diaz “has not produced the card that would show that he was in compliance at the time of the bout” (Opposition, p. 15). Defendant further states, in error, that because “there is no evidence of an identification card from the county health department as referenced in section 11362.7 of the California Code…it appears that Mr. Diaz is not in compliance with the registry laws of California.” (Opposition, p. 16)

Defendant has demonstrably misconstrued California law. The medical marijuana identification card program is a “voluntary program” (California Code 11362.71(a)(1)). Under California Code 11362.71(f), it is not necessary for a person to obtain a medical marijuana identification card in order to claim the protections of section 11362.5, the Compassionate Use Act of 1996.

The Compassionate Use Act specifically exempts from section 11357 (which section prohibits possession of marijuana) persons whose marijuana treatment has been recommended by a physician. Under California Health and Safety Code Section 11362.765, both `qualified patients’ and persons with an identification card “shall not be subject. ..to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570”. A ‘qualified patient’ is any person who is entitled to the protections of Section 11362.5 but who does not have an identification card (see section 11362.7(f)).

Plaintiff has already provided two physician’s recommendations to the NSAC. Whether Plaintiff is either a “qualified patient”, on the one hand, or “a person to whom an identification card has been issued”, on the other, is immaterial to Plaintiff’s legal entitlement to use medical marijuana under California law, as statutory protection is afforded to both. The physician’s recommendations therefore dispositively prove that Plaintiff is entitled to the protections of section 11362.5 and 11362.765. There is no good faith reason for delaying a final hearing on the putative basis that Plaintiff has not yet provided documents to establish compliance with California law.

C. Defendant Misconstrues the Significance of the February 22, 2012 NSAC Meeting

Defendant has suggested that that Plaintiff received all the due process he was entitled to in the circumstances by virtue of the hearing that took place on February 22, 2012. (PAB, p. 11) In other words, in Defendant’s view, because Plaintiff did not contest the suspension hearing on February 22, 2012 it is not now open to him to raise a due process complaint.

Defendant’s position ignores the fact that Plaintiff did not have due process concerns to raise at the February 22, 2012 meeting. The facts that engendered Plaintiffs due process complaint arose following that date. The process that Plaintiff claims he is entitled to is a final determination of the disciplinary proceedings within 45 days of the date of the suspension — or without delay (as his rights of due process require). That issue did not arise until well after the February 22, 2012 meeting.

Plaintiff’s election to focus his resources and attention on the final hearing, which he reasonably expected would be set down promptly following the February 22, 2012 meeting, did not give the NSAC a licence to proceed without regard to Plaintiff’s due process or statutory rights.

Furthermore, Plaintiff could not have reasonably expected that, in his absence, the NSAC would violate its governing statute — NRS 467 — by effecting a suspension without any finding that a suspension was necessary for the protection of the public welfare, Defendant’s implicit suggestion is that in absence of a licensee’s optional attendance at an interim hearing, Defendant has free rein to conduct itself without any regard to the constraints imposed upon it under law — both at the meeting itself, and thereafter.

With respect, that is an absurd and untenable position that requires unequivocal correction by this Court.

D. Defendant Misconstrues the Doctrine of Exhaustion of Administrative Remedies

The crux of Mr. Dial’s complaint is that the NSAC’s processes have deprived him of his due process rights and violated applicable Nevada statutory law. Plaintiff has not failed to exhaust his administrative remedies, in connection with this complaint, such as to deprive this court of jurisdiction.

There are three reasons that Defendant’s suggestion that the complaint is not ripe for adjudication is mistaken.

First, there is no administrative remedy available to require an administrative agency to convene a hearing or to cancel a summary suspension prior to a final hearing. Under NRS 622A.360, the only prehearing motions permitted by law are the motions enumerated under NRS 622A.360(2)(a) to (f). The section does not permit a motion forcing an agency to convene a hearing where it has refused to do so, and does not contemplate a motion to rescind a summary suspension prior to a final hearing in circumstances of undue delay. There was therefore no step available for Plaintiff to take in the administrative agency proceedings to obtain relief from the NSAC’s continuing refusal to set the matter down for final hearing.

Second, as stated in Department of Taxation v. Scotsman, 109 Nev. 252, 849 P. 2d 317 (1993), a case cited and relied upon by Defendant (Opposition, p. 6, footnote 3), the exhaustion doctrine will not “deprive the court of jurisdiction where initiation of administrative proceedings would be futile” (p. 255). Under NRS 622A.360, bringing a motion to the NSAC seeking an expedited hearing date or relief from the summary suspension made against him would have been futile, as such a motion is precluded by statute. See also Engelmann v. Westergard, 98 Nev. 348, 647 P.2d 385 (1982) at p 353.

Third, exhaustion of administrative remedies is not required when the adequacy of the administrative process is for all practical purposes identical with the merits of Plaintiff’s lawsuit. See Barry v. Barchi, 443 U.S. 55; 99 S. Ct. 2642 (1979) at p. 63. In this case, Plaintiff’s lawsuit raises squarely the issue of whether the NSAC’s administrative process complies with NRS 233B, NRS 467, and Plaintiff’s due process rights. The administrative process itself is what is being put in issue under Plaintiff’s Complaint. Accordingly, the suggestion that Plaintiff should have exhausted administrative remedies — by awaiting the full determination that the NSAC has not yet agreed to set down for hearing — is misconceived.

Defendant’s proposed application of the exhaustion doctrine would constitute a substantial expansion of the doctrine of exhaustion entirely inconsistent with the existing jurisprudence. If Defendant’s proposal for extending the doctrine were to be accepted, administrative agencies would be empowered to take any summary or temporary action against a licensee, at any time and regardless of any applicable statutory restrictions or rights of licensees, and then guard against the prospect of judicial interference with their unlawful actions by unilaterally electing not to convene a final hearing.

E. The Minimum Procedural Requirements Under NRS 233B Apply To Interim Suspensions Made By The NSAC

Defendant has taken the position that there is no time limitation whatsoever on “temporary suspensions” it unilaterally elects to effect under NRS 467.117. According to Defendant, the NSAC — unlike other State administrative agencies with the power to suspend a license pending final determination of a complaint — has no checks on its power of interim suspension whatsoever.

Defendant’s position is surprising, in that it suggests that the NSAC should be exempted from the “minimum procedural requirements” set out in NRS 233B applicable to all agencies of the State’s executive in connection with suspensions effected pending final determination of a disciplinary proceeding. (See NRS 233B.020.)

Defendant’s position has no basis in either NRS 233B nor NRS 467. Nothing in NRS 233B.127 limits the scope of that provision to suspensions made without an interim hearing. Nothing in NRS 467.117 expressly endows the NSAC with authority to extend such a suspension beyond the 45 day limit set out as the “minimal procedural requirement” in NRS 233B. If it was the legislators’ intent to provide such an exemption to the NSAC one would expect clear statutory language to that effect.

This is particularly so because of the recent concern that State legislators have expressed to ensure that licensees are entitled to a swift final determination of disciplinary proceedings where a suspension has been imposed pending that final determination. In 2009, NRS 233B.127 was amended (under Senate Bill No. 76). Prior to that amendment, the statute required that proceedings relating to a summary suspension must “be promptly instituted and determined”. For greater certainty and greater protection of licensees, a 45 day time limit was substituted (“…must be instituted and determined within 45 days…”).

Defendant offers no response to Plaintiffs position that the time limitation in NRS 233B.127(3), applicable to all suspensions made subject to a later final determination, must be interpreted to apply to suspensions made under NRS 467.117(2) to ensure that the latter statutory provision does not, on its face, constitute an infringement of licensees’ due process rights under the Fourteenth Amendment. Plaintiffs interpretation is to be preferred to an interpretation of 467.117(2) under which the statutory provision on its face infringes licensees’ due process rights.

Absent clear language exhibiting a legislative intention to endow the NSAC with an unprecedented power — to suspend licensees prior to final determination of a complaint with no limitations whatsoever, in spite of the `minimum requirements” in NRS 233E and the concern the legislators exhibited under the 2009 amendment of that statute — the minimum timing requirements set out in NRS 233B must apply.

III. REPLY TO DEFENDANT’S ASSERTION THAT A PRELIMINARY INJUNCTION SHOULD NOT BE GRANTED

A. Defendant Has Not Rebutted Plaintiff’s Proof of Reasonable Probability of Success on the Merits of the Complaint

Defendant has taken the position that it is not likely for Plaintiff to succeed on the merits on the basis that, in Defendant’s view, Plaintiff is unlikely to succeed in his defense of the NSAC disciplinary proceedings before the NSAC (Opposition, pp. 13-17).

Defendant’s position misconceives the test applicable to this motion for preliminary injunctive relief.

The issue is not whether Plaintiff’s defense to the NSAC’s complaint is likely meritorious — though Plaintiff submits the defense is indeed meritorious — but whether Plaintiff has established a reasonable probability of success on the merits of these proceedings commenced by Plaintiff’s Complaint.

Defendant has elected to take no position in respect of reasonable probability of success on the merits of these proceedings. In particular, Defendant has taken no position in respect of the reasonable probability of success on the merits of Plaintiff’s allegations that:

a) a summary or temporary suspension of Diaz’s license is not necessary to protect the public welfare;

b) the NSAC has made no finding that a summary or temporary suspension of Diaz’s license is necessary to protect the public welfare;

c) the NSAC’s failure to promptly convene a final hearing to determine the merits of the disciplinary complaint violates Plaintiffs due process rights;

d) the NSA(Ys February 22, 2012 meeting was ineffective under NRS 467.117;

e) the NSAC has lost jurisdiction to proceed with the complaint; and

f) in the circumstances, Plaintiff ought not to be required to post a bond. Defendant’s failure to respond to Plaintiff’s arguments that he has a reasonable probability of success in respect of each of these allegations is an admission that each such allegation is meritorious. See EDCR Rule 2.20(e).

B. Defendant Has Not Rebutted Plaintiff as to Irreparable Harm

Defendant’s position that Plaintiff’s loss will not be irreparable because the loss consists of economic damages and “economic damages are compensated by money” (Opposition, p. 18) ignores the effect of NRS 41.032. That provision provides the NSAC with a statutory immunity from actions for damages for actions based upon the exercise or performance of a discretionary function or duty, whether or not the discretion involved is abused. Accordingly, Plaintiffs loss cannot be “compensated by money damages” in this case.

In addition, where a professional athlete has a limited number of years remaining in which he can meet the rigorous physical standards essential to engaging in professional sport, harm cannot be measured in damages in any event. Ali v. The Division of State Athletic Commission of the Department of State of the State of New York; 316 F. Supp. 1246 (S.D.N.Y. 1970) at 1253.

Defendant has included no admissible evidence in its materials that could contradict the specific, sworn affidavit evidence of Plaintiff deposing to his imminent competition in professional mixed martial arts contests as soon as the suspension is lifted or stayed.

IV. CONCLUSION

For the foregoing reasons, and for those set out in Plaintiff’s Memorandum of Points and Authorities dated April 25, 2012, Plaintiff reiterates its request that the Court issue a preliminary injunction against the NSAC:

a) staying the suspension made February 9, 2012 and February 22, 2012 on a preliminary basis pending the determination of the Complaint; and

b) staying the disciplinary proceedings commenced against Mr. Diaz pending the determination of the Complaint or, in the alternative, enjoining the NSAC from issuing any further or other summary or temporary suspension of Mr. Diaz pending final determination of the matters alleged or referred to in the Complaint and First Amended Complaint.

DATED this 11th day of May, 2012.

Topics: Media, MMA, UFC, Zach Arnold | 6 Comments » | Permalink | Trackback |

6 Responses to “Nick Diaz’s fight for freedom to fight again is now in court”

  1. 45 Huddle says:

    Nick Diaz vs. NSAC is set for May 21st.

    It is funny. Diaz is spending all of this money for a lawyer…. and the end result will be exactly the same if he just represented himself.

    His lawyer has d#cked him around. Tried to play this into a game that he really had no chance of winning. And the courts today proved that.

    I don’t feel bad for Diaz. I hope they give him a full year because he was a 2 time offender.

    • edub says:

      “His lawyer has d#cked him around. Tried to play this into a game that he really had no chance of winning. And the courts today proved that.”

      How is that? The courts sided with the fact that they didn’t give him a hearing fast enough, but that he still has to go to a hearing with them first. Then said if he would like to challenge the commissions ruling afterwards they would hear the case.

      • 45 Huddle says:

        And do you think that will work either? Nope.

        His lawyer has failed every step of the way. And for what? A Hail Mary with the Nevada Courts going against the NSAC in the end?

        Diaz would have been better off getting to the NSAC ASAP, doing his time, and saving what money they didn’t fine him.

  2. Zach Arnold says:

    People in the MMA community better realize after what happened today and what happened to Ken Shamrock that Nevada protects its own no matter what in the court system.

    http://www.mmafighting.com/ufc/2012/5/14/3020501/nick-diazs-injunction-denied-forcing-him-to-wait-until-nsac-hearing

    The idea of a one-year suspension for marijuana when Overeem got 9 months for a tetra mix w/ testosterone is totally unjustifiable.

    • If anything, it’s a sign of clear corruption.

      Alistair Overeem’s light suspension was given based on completely unjustifiable merits. His testimonial was backed by no evidence, not to mention conflicting statements from his assistants, doctor, and lawyer.

      And yet, it appears that he’ll get a quick re-licensing in time to compete in Vegas for the UFC’s usual New Year’s card.

      Diaz simply burned too many bridges with the Nevada State Athletic Commission, and the NSAC in turn tries to build “street cred” by throwing the book at him.

      And who says that MMA is all that different from boxing?

    • Weezy02 says:

      What is WADA’s punishment for a second offense of an illegal recreational drug? What is their punishment for a first offense of a PED? The answer to these questions might help give us some industry context.

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