Three years ago, when the Nevada Judicial
Discipline Commission tried to investigate
abuse-of-office allegations against Jerry Carr Whitehead,
the commission was represented by the Office of Attorney
General Frankie Sue Del Papa. Now
Del Papa is on the other side of the fence -- defending
Whitehead, in federal court. Once again the charge is that Whitehead
misused his authority while on the bench in Nevada's
Second Judicial District. But this time representatives of the Attorney
General have been consulting with the ex-judge, while
offering arguments in court defending his actions. Whitehead is being sued in his official
capacity, but several of the arguments offered by Deputy
Attorney General Creighton C. Skau before federal
district judge David Hagen, assumed Whitehead was being
sued as a private individual, and defended him on that
basis. Usually, in any case where a former public
official is being sued in his private capacity, he must
hire his own private defense counsel, rather than be
represented by the Attorney General's office. This action against Whitehead -- now set for
hearing before the United States Ninth Circuit Court of
Appeals after a September ruling by Hagen in favor of
Whitehead and the Attorney General's office -- was
originally filed by Sparks businessman Mark A. Edwards on
January 3. That was just 12 days before Whitehead, in a
deal with federal prosecutors, gave up his District 2
judgeship on other federal charges, still never been
officially disclosed. Edwards, an originator of equipment for paging
and other communication systems, alleges in his complaint
that Whitehead, in a several-year period beginning in
August, 1988, repeatedly violated Edwards' legal right to
due process under the U.S. Constitution by entering
unlawful restraining orders that prevented Edwards from
implementing his rights as a creditor under a 1987 U.S.
Bankruptcy Court judgment. The Whitehead orders were unlawful, contends
Edwards, because jurisdiction in the matters lay with the
bankruptcy court, rather than Whitehead. [see last week's stories] Though two somewhat similar counts in the
complaint are leveled against state judge Deborah Agosti,
the Edwards filing characterizes her as essentially
misled. Whitehead and others, however -- including
members of the Nevada Supreme Court -- are viewed as
actors in a criminal conspiracy. "Whitehead, debtor Fastpage, Inc. and
debtor's attorneys are the subject of complaints filed
with the appropriate agencies" says the complaint,
which lists 12 sections of Title 18 of the U.S. Code,
under which the complaints were filed. The last section
of the 12 is the federal Racketeering In Corrupt
Organizations (RICO) statute. Deputy Attorney General Skau, a member of the
A.G.'s litigation division, prevailed before Hagen by
arguing that Edwards was a "disgruntled
litigant" who kept trying to re-open matters that
Whitehead had resolved. "You know, there's an interest in the law
in finality of litigation," Skau told Electric
Nevada. "And there are certain procedural rules
that say, 'Hey, these are your rights to pursue it, but
if you don't follow those procedures, you're done.' Now
that's basically what happened in this lawsuit. Mr.
Edwards lost. Whether he was right or wrong, at this
point, is of no concern to me in the legal sense. Now,
maybe in the moral and abstract sense Mr. Edwards still
has concern over this, and the judicial system is a
process that isn't always right, but it is a process that
has certain rules, and sometimes the process is very
important even if you don't get perfect justice. "But what happened in this case is that
Mr. Edwards is what I would call a 'disgruntled
litigant.' He lost. He filed a new lawsuit in front of
Judge Agosti and Judge Agosti reviewed the whole matter
and determined that Mr. Edwards was again bringing the
very same issues that had been litigated, over to her
court, and the matter had already been decided. So we
have a principle called res judicata that says,
'Hey, you don't get to keep taking bites of the apple.'
And she granted a motion for summary judgment." Edwards, a non-attorney who represented
himself before Hagen's court, said his impression was
that
Judge Hagen hadn't even bothered to read the points
and authorities that Edwards, as plaintiff, had
submitted. He had argued that the injunctions of both
Whitehead and Agosti has legally been void ab initio,
from the beginning, because jurisdiction on the matters
behind the injunctions had been reserved by the federal
bankruptcy court.
Evidence Hagen had not even grasped the nature
of the complaint, said Edwards, was the explanation Hagen
gave when he dismissed Edwards' request for relief from
Whitehead's injunction.
"Judge Whitehead has retired from the
bench," wrote Hagen, "and no longer has the
power to enjoin plaintiff... Due to Judge Whitehead's
retirement, plaintiff's official capacity claims for
prospective injunctive relief against him must be
dismissed as moot."
That statement, said Edwards, means that Hagen
never got the message that Whitehead was being sued in
his official capacity -- even though the complaint
clearly said that, and even though that point was made
several times elsewhere in the briefs Edwards submitted.
Hagen had to still be under the impression
that Whitehead was being sued as an individual, says
Edwards, because only then would Whitehead's resignation
change anything -- or make anything "moot."
Under federal rules of civil procedure, agreed
both Edwards and Skau, any action begun against a public
officer in his official capacity does not end when he
resigns. Since it is the office that is being sued, the
new occupant of that office automatically is substituted
as the subject of the suit. Thus Judge Janet Berry, the
new occupant of the Department 1, Second Judicial
District judgeship, is automatically substituted,
theoretically, in Whitehead's place in the suit.
A second incoherence in Hagen's decision, said
Edwards, was the phrase 'prospective relief,' since what
he was seeking was actual relief now from the existing
Whitehead and Agosti injunctions, rather than relief from
prospective injunctions in the future.
Edwards says he expects the Ninth Circuit to
reprimand Hagen -- not only for indifference, in not
bothering to read Edwards' briefs, but also for not
meeting the responsibility federal jurists bear to
protect the rights of citizens who appear before them in
propria persona, or in the vernacular, as "pro
pers."
In one of the responses Edwards made earlier
to motions made by the Attorney General's office, he
noted that he had filed a complaint against Whitehead
with Attorney General Del Papa two years earlier.
"The complaint is a direct result of your
inability or unwillingness to prosecute Judge Whitehead's
unlawful conduct as outlined in my complaint of November
17, 1994," he said.
Noting the drift of Del Papa's office over to
Whitehead's side.
"At one time, your office represented the
Judicial Discipline Commission, prosecuting the
complaints against Whitehead... [You] now take the
position of defending the unlawful conduct of the
defendant judges."
Electric Nevada obtained a copy of the
1994 complaint filed with Del Papa by Edwards.
"Dear Ms. Del Papa," began the
letter. "Please consider this letter as a formal
complaint for Oppression Under the Color of Office, and
related offenses, against Jerry Carr Whitehead and
others..." [Excerpts
from letter]
Five days later Edwards received a reply from
the Attorney General's chief of investigations, Robert L.
Pike.
"Due to a recent Supreme Court
decision," wrote Pike, "the Attorney General's
Office has no involvement of any type with judges. I
suggest you write the Judicial Discipline Commission at
P.O. Box 48, Carson City, Nevada, 89702, phone 687-4017.
"If you have a complaint of any alleged
illegal acts, that complaint should be referred to the
District Attorney of Washoe County. I have read in the
newspaper of possible FBI involvement in this area and
suggest you contact the Reno Office and inquire if they
have interest in your complaint."
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