Consulting, Defending
Frankie Sue Lines Up With Whitehead

   By Steve Miller
   copyright 1996, Electric Nevada

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

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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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