Deborah Agosti announced her decision to leave the court in January.

Deborah Agosti announced her decision to leave the court in January.

Photo By David Robert

Agosti steps down
Nevada Supreme Court Justice Deborah Agosti last week announced her retirement from the court because of health problems.

Agosti, who has suffered chronic health difficulties on both the District and Supreme Court benches, was recently hospitalized for cardiac problems and is facing neck surgery. She said the combination of health issues, court business and her role as a single mother raising two teen sons meant that something had to give. Agosti will complete her term, which ends in January.

While Agosti is best known for a decision on legislative tax issues that broke a stalemate in the Nevada Legislature last year, one part of her legacy on the court is still hanging fire at the nation’s highest court and has become a cause célèbre among privacy advocates.

In December 2002, she wrote a sharp dissent against the Nevada Supreme Court decision empowering police to shake down citizens in cases where no crime has been committed or probable cause exists. The case involved Nevada resident Larry Hiibel, who refused to identify himself to Humboldt County sheriff’s deputies. He was jailed by the county under a statute, Nevada Revised Statute 171.123(3), which had already been overturned by a federal court but had not yet been repealed by the Nevada Legislature.

A four-justice majority of the Nevada Supreme Court upheld Hiibel’s detention, with Justice William Maupin writing defensively that “the majority has not somehow overreacted to the dangers presented by” Sept. 11.

But Agosti wrote, “As the majority aptly states, the right to wander freely and anonymously, if we so choose, is a fundamental right of privacy in a democratic society. However, the majority promptly abandons this fundamental right by requiring ‘suspicious’ citizens to identify themselves to law enforcement officers upon request or face the prospect of arrest.” Her opinion was supported by two other members of the court.

The Hiibel case was then accepted by the U.S. Supreme Court, which heard oral arguments on March 22. It is not known when the court will release its decision. The case has attacted wide attention, with the issues cutting across traditional liberal/conservative lines. The Electronic Privacy Information Center has posted all the legal documents and much of the commentary in the press on its Web site at www.epic.org/privacy/hiibel/default.html.