Lawyerly games

The Nevada Senate hall was very warm, and tempers were in the same condition. The temperature was high because of all the bodies jammed into the room. The tempers were high because the senators had just passed the Equal Rights Amendment on a tie vote broken by Lt. Gov. Robert Rose.

It was Feb. 8, 1977. The senate was tied over ERA, and two opponents of the measure had abstained in order to prevent a tie that Rose—an ERA supporter—could break. But in a strategy planned well in advance, Sen. Joe Neal invoked Senate Rule 30, which required senators to vote either “aye” or “nay” and treating abstentions as “nay” votes. The rule, which helps prevent obstruction, was usually used to end debate and hold the vote. In this case, however, it was used to prevent abstentions and allowed ERA to pass the Senate.

Opponents of ERA were angered by the maneuver and announced their intention to go to court to overturn the outcome. And the legislature’s lawyer, Frank Daykin, made it clear that he would represent the losing senators in the court battle. It was an extraordinary stance for him to take—he was going to represent some of those he considered his clients against others he considered his clients, and he was taking the side of the minority.

ERA supporters decided to have the court remove Daykin from the case, but before push came to shove on the matter, the other house in the legislature defeated ERA, rendering the issue of the Legislative Counsel’s office moot.

Such machinations are common in government, but rarely get much news coverage. One of them broke into the news a few days ago when Gov. Jim Gibbons and Attorney General Catherine Cortez Masto wrangled over a legal contract.

At issue was Robert Loux, director of the Nevada Nuclear Waste Project Office, the agency that leads Nevada’s fight against the proposed federal dump at Yucca Mountain for other states’ high level nuclear wastes. Loux was forced out after it became known that he had taken the salary savings from a vacant position and allocated it to other people in the office, including Loux himself. Loux said the action was approved by Gov. Kenny Guinn.

The Loux dispute is currently before the Nevada Ethics Commission, and normally a lawyer from the attorney general’s office would represent him. That’s because the attorney general represents public employees in matters involving their official duties—actually representing the state in the person of the employee. In addition, it has not been established that Loux did anything wrong or that he was not acting in a good faith belief that his actions were legal.

Cortez Masto was in an uncomfortable position, and her decisions were made even more awkward because of a wave of news coverage last year that essentially convicted Loux in the court of public opinion. The Nuclear Projects Office generates a lot of litigation, so the attorney general’s office has a long and close relationship with Loux, which preceded Cortez Masto’s tenure by many years, and she worried about the appearance of impropriety. She decided it would be better for the state to arrange for independent counsel for Loux, paid for by the state. And she handed investigation and possible prosecution off to a county prosecutor, a common procedure for avoiding conflicts of interest.

State contracts must be approved by the Nevada Board of Examiners, made up of the governor, attorney general and secretary of state.

When the contract for a private lawyer to represent Loux came to the board last week, Gov. Jim Gibbons asked, “Should the state of Nevada be defending someone who violated the state law? … We don’t have an obligation to defend him when he violates the law.”

Gibbons, who never set foot in a courtroom as a lawyer but did graduate from law school and pass the bar exam, was chastised by Cortez Masto for pre-judging Loux. A decision on the contract was delayed.

Sometimes lawyers can, by the advice they give, determine the outcome of an official body’s votes or a public official’s decisions. In 1980, when Lt. Gov. Myron Leavitt was threatening to shut down the problem-plagued dump for low level nuclear wastes near Beatty whenever the governor left the state, Attorney General Richard Bryan advised him against the move and made it clear that if any liability was triggered by Leavitt, he would not get representation from Bryan’s office.

The power that a public counsel can assume was demonstrated in a 2006 dispute over the possible construction of a neighborhood casino, the Lazy 8, in the Spanish Springs Valley ("Vote? What vote?” RN&R, Sept. 14, 2006). The city had been sued by the casino for obstructing the project and the City Council empowered City Attorney Chet Adams to settle the litigation. One possible outcome to Adams’ negotiations with the casino lawyers was a settlement whose provisions included approval of the project, and that’s the option Adams chose. In effect, the casino was approved not by the City Council but by the city attorney.

Sometimes the public’s lawyers even find themselves arguing against the public. Last year, one of the legislature’s lawyers, Kevin Powers, was in the Nevada Supreme Court arguing to overturn the public’s vote in favor of term limits. It was not his decision.

“We were directed by the Legislative Commission to do it,” said Lorne Malkiewich, director of the staff arm of the Nevada Legislature. The Legislative Commission is one of the bodies that handles legislative business when the full legislature is out of session. Washoe Sen. Randolph Townsend recalls that virtually everyone on the commission supported challenging the term limits measure, to the point that he doesn’t recall who sponsored the motion. Legislators had long been resentful that state judges had changed the wording of the term limits ballot measure, which voters approved, to favor themselves.

The measure had to be voted on by the public twice, and in 1996, in what many lawyers have called a typical case of black robe fever, the Nevada Supreme Court ruled that the portion of the term limits initiative petition that covered judges be broken off from the portions covering all other offices and made into a second ballot measure. This was after the original measure had already been approved by voters in first-round voting, so the court’s decision was not in compliance with the Nevada Constitution, which says a first and second ballot shall go to the voters “in the same manner as such question was originally submitted.” (The voters voted against term limits for judges but approved them for all other offices in the initiative petition.)

Townsend concedes the awkwardness of putting a taxpayer-funded lawyer in the position of arguing against a public-approved measure, but says, “This was simply, ‘Did the court do it legally?’ We argued that they didn’t, based on what the constitution said, and they [the court] said, ‘You’re dead wrong. Have a nice day.’ And it was over.”

Townsend argues that the legislators’ intervention was actually on the public’s behalf because “people have rights,” and one of those rights is that the courts will observe the law protecting initiative petitions.

It was a long shot—the legislators were essentially asking the justices to change their own original ruling on their own behalf. “They would have to admit they did it wrong,” Townsend said.

The court ruled that it did it right.