"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
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.