Nevada Attorney General
Charged with Violations
Of Professional Conduct

  by Steve Miller
  copyright 1996, Electric Nevada

"I will say this, and you can quote me on it: Frankie Sue likes taking risks."
The speaker was Eureka County District Attorney William E. Schaeffer, and he was discussing anger in rural Nevada against state Attorney General Frankie Sue Del Papa.
That anger took legal form in Carson City September 17 when longtime Nevada property rights activist Edward L. Presley, of Elko, filed suit against Del Papa before the Nevada Supreme Court.
The suit charges Del Papa with numerous violations of professional conduct, a willful failure to perform the duties of her office, and announces forthcoming complaints against her before the Nevada State Bar.
Presley asks the state's high court to either remove Del Papa from office or compel her to correctly perform her duties.
And while the Eureka County district attorney thinks the odds are against Presley, a non-attorney, winning in Nevada's highest court, he agrees that the state's current legal situation with its Attorney General is "intolerable."
That situation was demonstrated most powerfully recently when U.S. government attorneys challenged in federal court a set of Nevada laws passed by the state legislature in 1979 and signed by then Governor Robert List. The laws, chapter 321 of the Nevada Revised Statutes -- better known as the 'Sagebrush Rebellion' statutes -- had been explicitly intended by lawmakers to precipitate a test in the United States Supreme Court of long-standing questions regarding the ultimate title to public lands in Nevada.
However, when Nevada's Attorney General responded to the federal complaint, she personally short-circuited the state's 17-year bid for testing of the constitutional questions by stipulating that the statutes in question were, in fact, unconstitutional.
"Nevada now concedes that its statutory claim is legally untenable," wrote Las Vegas U.S. District Judge Lloyd George in his subsequent decision, in the case of Nye County v. U.S. He added that "the concession is tantamount to a consent that judgment should be entered in favor of the United States."
"The issue," said Schaeffer, "is how does a state defend its statutory scheme if it can't get its own attorney general to do it?
"I mean, what do they pass these things for? They can pass resolutions all the time; this was a law; it was not a resolution. The legislature knew what it was doing when it did it."
Reno attorney Glade Hall agrees. He is representing Ruby Valley rancher Cliff Gardner in a case currently before the Ninth Circuit Court of Appeals.
"I can tell you for sure that an attorney general does not have the right to nullify legislation duly passed by the legislature and signed by the Governor," he says.
"Hell -- the Attorney General's got a veto power over the Legislature? That's nonsense. And that's what she's doing.
"It is her duty to execute the law; she is part of the executive branch of the government, and we have separation of powers. The constitutional authority is not there for the Attorney General to nullify legislation," says Hall.
The Gardner case before the Ninth Circuit is cited by Presley in his Nevada Supreme Court brief. It is one of many cases he notes where Del Papa has actively intervened on the side of the federal government and against Nevada citizens.
Not only has Del Papa undercut "Gardner, Petitioner, the State and its Citizens" by taking the federal
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side in the question of NRS 321, which the Gardner appeal relies on in part, writes Presley, but she also "shuns her duty and sides with the United States (Plaintiff-Appellee) by joining in an Amici Curiae [friend of the court filing] in opposition to the State Law."
"By doing so," he argues, "Del Papa has committed Nevada to an action in the name of the State, and conversely, she is challenging the very statute she is duty bound to enforce."
It's activity like that which leads Eureka D.A. Shaeffer to say Del Papa must like taking risks.
"I'm going to give her credit for intelligence," he says. "I can't believe she's too stupid to know she's taking risks.
One major risk, according to an attorney intimately familiar with the positions of the three previous occupants of the Attorney General's Office -- Robert List, Richard Bryan and Brian McKay -- is that Del Papa is in fact simply breaking state law, and thus liable for it.
Evidence for that, the source told Electric Nevada, is that neither McKay nor Bryan nor List shared the view of state-federal relations Del Papa has brought to the A.G.'s office.
He also said that notwithstanding the departure in policy introduced by Del Papa, the only official Attorney General opinion in existence is one that dates from 1983 and is actually in direct contradiction to positions pursued by Del Papa and her natural resources deputy, Wayne Howell. Previously an attorney in the U.S. Bureau of Land Management, Howell was hired by Del Papa when she first took office.
One irony in Presley's suit, says Schaeffer, is that to some extent the Elko activist's effort to disqualify Del Papa can deploy legal arguments that she herself, in 1993, made part of the public record. That occurred when Del Papa filed suit against several Lincoln County officials, charging that they had failed to do their jobs.
"She was trying to remove them from office because, by resolution, they were inviting the federal government to at least consider putting a railroad route, and a possible temporary [nuclear] storage site in Lincoln County," notes the Eureka County D.A.
"She filed suit against all of those officials who voted for that. It was two commissioners and I forget whether it was three, four or five city council persons over at Caliente... Anyway, she did sue to remove them from office. That was later settled out of court. Basically she said that they were violating their oaths, because it violated state law."
Schaeffer, who calls the Presley suit "clearly a 'turnabout is fair play' situation," says that Del Papa's best defense would probably be the ambiguity built into the oath of office that Nevada Attorney Generals are required to swear.
Left over from the post-Civil War Reconstruction era, he says, that oath not only requires the Attorney General to defend the statutes of the State of Nevada, but also those of the United States.
In the case of NRS 321, however, there is no real problem, he says.
"It's not like you're taking an overt act or anything, you're just asking the court 'is this true or isn't it?'
"So, [my] personal opinion is, yeah, I think she violated her oath. But whether anybody's going hold that way, who knows."
Attorney General Del Papa, out-of-state for the last two weeks, was unavailable for comment on this story.

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