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
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
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