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PRO SE PLAINTIFF WILL FIGHT FOR HIS CONSTITUTIONAL RIGHT TO A GRAND JURY HEARING
by Sharon Rondeau
(Sept. 13, 2010) — The Post & Email had previously reported on the case of two plaintiffs, one of whom is U.S. Senate candidate Tim Fasano, regarding their request for and subsequent denial of a grand jury hearing stemming from suspected criminal conduct on the part of a judge who had presided over a criminal case in which Mr. Fasano and his wife were injured in their home by several assailants.
Mr. Fasano contacted us last week to inform us that his case was placed on a 30-day schedule for hearing and disposition at the Nevada Supreme Court, where he will represent himself in requesting the convening of a grand jury in Churchill County, NV. If convened, the grand jury would examine evidence of criminal conduct against Judge David A. Huff, in keeping with the Fifth Amendment of the U.S. Constitution and the Nevada Revised Statutes.
According to Mr. Fasano’s research, Churchill County has not convened a grand jury in 35 years.
MR. FASANO: When we appealed the case to the Supreme Court, they had to assign us a new number. Once they do that, they give us a briefing scheduled. Generally, in this state, the briefing schedule says you have 180 days to submit your brief. Once that is done (in this case, with a Writ of Mandamus), they have 30 days, because it is a First Amendment petition, to rule on it. So as soon we get our number, we’re in court. We’re submitting our paperwork on Day One. So they’re not going to have a lot of time. We believe that we have a very, very strong argument, and we believe that they’re going to have to consider the box that they’re in. And they are in a box; we put them in a box with our argument such that they have virtually no way out. That’s good for us, and that’s one of the reasons I called you: to let you know that this document is done, and I will get it to you. It’s 270 pages, although the brief itself is only 30 pages long, which is the limit.
MRS. RONDEAU: Did you write it yourself?
MR. FASANO: Yes. No attorney helped me; I did all my own legal research, all my own case law references, statutory references, and precedent references. I don’t like to pat myself on the back, but I think I did a pretty good job on it. It’s the culmination of two weeks’ worth of solid work. Now that we’ll have a number today, we’ll complete the covers and probably submit them to the Supreme Court tomorrow.
MRS. RONDEAU: After the court receives it, how long do they have to hear and decide upon it?
MR. FASANO: It has to be decided; not heard, but decided, within 30 days. It’s a bifurcated schedule in the Supreme Court where certain issues must be heard within certain time frames. There will be certain issues that can be set aside and say, “OK, we’re going to put this on a 180-day briefing schedule,” but it would be towards the back of it, because they have to keep certain blocks open. According to the Supreme Court clerk, they keep certain blocks of time open for this type of situation where something comes in which they have to address right away. If they don’t have anything come in, then they can get caught up on their other filings.
In this case, with a 30-day limit, I have the statute where it talks about Writs of Mandamus and extraordinary Writs such as this as requested, and it is under the First Amendment to the Constitution or the Ninth Amendment to the state constitution, which is the same thing: they have to hear and decide it within 30 days.
This is good not only for us, but also for the whole situation with the grand juries. This means it can come up to the forefront much faster; that’s why we chose to go this route with the Writ of Mandamus and use the First Amendment petition clause.
MRS. RONDEAU: Will the Supreme Court of Nevada be deciding whether or not a grand jury will be convened on your behalf?
MR. FASANO: Yes, we’re asking them to convene the grand jury in light of our case. We have a good argument. If you read it, you’ll be able to see the box in which we’ve put them. There is a requirement when you go before the Supreme Court: it must be put in book form, it must be hard-covered, then covered again, all completely annotated, it must be spiral-bound; you name it! It’s going to be a professional-looking product! I now have a new-found respect for paralegals!
MRS. RONDEAU: And this tremendous amount of work is a result of your quest to obtain justice in regard to a horrible crime that was committed against you.
MR. FASANO: Yes. On the last page of the brief, where I state my conclusion, according to the rules in this state, if I prevail, the county has to reimburse me for my expenes, e.g., copying services, printing services, and travel. I’m not really all that worried about, but what I was concerned about was that Wes, the primary filer, and I were made to pay a filing fee in the Third Judicial Court for the appeal, then we were required to pay a $250 fee at the Supreme Court, and we had to post a $500 bond. Why do we have to pay money for justice to be done? I mentioned this in the conclusion almost exactly as I said it here: we should not have to pay to ensure that criminal charges are brought against a person who broke the law. It’s not so much the amount; it’s the principle. That is wrong, flat-out wrong.
Most people who have been wronged the way we have don’t know how to go through this process to do what needs to be done, and right now, they couldn’t afford it. So how does a person get justice if they’re wronged by the justice system?
MRS. RONDEAU: It appears that they make it prohibitive even if someone has the courage to step forward and ask about it as evidenced by the roadblocks that have been placed in your path.
MR. FASANO: Yes, and when the fees were paid down in Churchill County, they wanted the Supreme Court filing fee up front, and we told them “No, we’re not paying you. We’re taking this directly to the Supreme Court.” Normally what happens is they collect the money, and then they sit on it, and it doesn’t get sent to the Supreme Court, in many cases, according to the clerk. So I said, “Well, I’ll fix that,” and she kind-of laughed when I was talking to her about it. She said, “Well, how are you going to do that?” and I said, “I’m going to refuse to pay it,” and the rules say that if I refuse to pay it, they still have to accept it. Now I have “x” amount of days from the time that I filed to pay that fee to the Supreme Court. It doesn’t say that I have to pay it to the Third Judicial District Court; it says I have to pay it to the Supreme Court. So we’re going to pay it as soon as we file.
MRS. RONDEAU: So that gave you a little more time.
MR. FASANO: Right, but time is not even the issue. For us, we’re not going to pay the Third Judicial District Court to have them sit on money that is rightfully supposed to go to the Supreme Court, and then, we already know that they’re not going to want to give us our money back.
MRS. RONDEAU: Do you think that will have an impact on how this is decided?
MR. FASANO: I don’t think it will. It’s not a lot of money. The copying fees are not that much, because you have to go by standard rate in a commercial environment that’s located near the court. So I don’t think there’s a big problem with that cost-wise. I think the biggest problem is that when the judge denied it, we put him into the same box that we put the Supreme Court in, so he had to pick the lesser of the two evils. And that was to push it onto the next higher authority and let their hands get dirty. Now it’s before the Supreme Court, and they’re going to have to get their hands dirty with it because I have one more step after this. The last place they’re going to want me to take this is the U.S. Supreme Court. I’m not sure they would even hear it, but that’s still an option.
MRS. RONDEAU: Do you think it’s a strong possibility?
MR. FASANO: I don’t foresee doing it because it’s cost-prohibitive and I’m not an attorney; I cannot go and argue before the U.S. Supreme Court. The other issue is the time that would be needed.
MRS. RONDEAU: Most people wouldn’t have the time as they try to work and earn a living. The cost of hiring an attorney must be enormous.
MR. FASANO: It’s so prohibitive that it makes it quite difficult for the average person to do this. I’m lucky. I have the ability; I understand the processes and the paperwork. However, it hasn’t always been that way. Many people don’t know these processes.
The bigger picture is that once the citizens know what’s going on, they’re not going to be pleased. There was an article that came out in the Fallon paper yesterday that is really interesting. It’s entitled “Panel: Reno Muni Judge Violated Campaign Rules” concerning campaign contributions. The article was well-written and told how and when the violations had occurred. But the last sentence says, “The ethics panel dismissed that allegation against him.” So they clearly had a judge before them who had broken the law, and the ethics panel flat-out dismissed it.
When you read my brief, you’ll see that I addressed that specific situation. That article reflects exactly what I was arguing about because it goes to the point that it’s an administrative process. It’s not a disciplinary process; it is not an adjudicated process. So this just proves my point even stronger: that because it’s an administrative process, a citizen has no control over it, no input into it, and no vested interest in it. I made that point in the brief.
There’s something else that I found out. I had been under the impression that there were three separate categories, or avenues, of punishment, or, if you will, disciplinary actions. One is through the Commission on Judicial Discipline and is administrative; the second, according to the constitution, says that he can be indicted under criminal charges. The third is civil. But there’s actually a fourth, and I didn’t realize it until I started researching what the process was. The fourth comes under requirements of what the grand jury has to do if they entertain this idea. I present my case, and they say, “Yes, there’s an abundance of evidence to indicate that this person has committed felonious acts,” but because he’s an elected official, they have to present it in court just like anybody else: through a presentment or indictment in court on information to be placed on the records of a court. But there’s a second thing they must do, and I never picked up on it: they have to place the indictment/presentment and information on the journals of the assembly and the senate of our state legislature, and that leads to a trial for impeachment proceedings against that individual, and that is the fourth avenue.
MRS. RONDEAU: If you weren’t doing all this digging, the average citizen would never find it out.
MR. FASANO: It is so hard to get this information. I’ve asked attorney after attorney after attorney what the processes were, and everybody says, “I don’t know.” It’s alarming to me that our legal professionals don’t know. That’s scary. But that’s what I found out, and I think that is probably what scares them the most: the power of that grand jury, because they’re going to be able to wield a whole different type of power than they’ve been used to dealing with over the last 100 years.
I don’t know if I’ve told you this, but Judge Huff presided over two, maybe three, capital cases over the last two years. How is this going to affect the capital cases? We both know what the Fifth Amendment says: it must be by presentment from a grand jury for capital or infamous crimes. If he is found to be a law-breaker, according to the Doctrine of De Facto Officer, it’s no longer a procedural thing. Then it becomes a jurisdictional issue. If you look at it the way my research looks at it, that jurisdictional issue goes all the way back to the time that he committed the infraction, not the time at which he was convicted of it. So if he was a felon in proper context, from the time he committed that felony and he ruled on capital cases afterward, those indictments are in jeopardy of being overturned.
I believe in my heart that criminals such as that need to be incarcerated. However, it causes a very, very precarious situation for the entire judicial system of the state.
MRS. RONDEAU: It seems similar to if Obama was never eligible to be president and he is removed, what does that do to all the things he has signed?
MR. FASANO: Technically, they’re void.
MRS. RONDEAU: So if the judge is guilty of a crime, he never should have been making any decisions.
MR. FASANO: It is exactly the same principle. It’s called the “Doctrine of De Facto Officer.” The Obama situation is exactly the same thing: if he’s proven to be a usurper, everything from the time he took office until the time he is removed is null and void. That is set in precedent. There are stark parallels between the situation with Obama and this judge because the law is the exact same law.
MRS. RONDEAU: I noticed that in the Nevada constitution, it states that the U.S. Constitution is supreme.
Editor’s Note: Article I, Section 2 of the Nevada constitution states:
Sec: 2. Purpose of government; paramount allegiance to United States. All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair[,] subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existance [existence], and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.
MR. FASANO: Yes, there is a supremacy clause which confers supremacy to the U.S. Constitution. It’s a very sticky point. How can you pick the document to which you’re going to confer supremacy and then go against that document in continuing to write the state constitution? It’s a conflict when it comes to presentment for criminal charges under a specific article in the state constitution. My argument is that the supremacy of the federal constitution is clearly delineated. There’s no wiggle room. I’ve talked to attorneys about it, and they’ve said, “I never realized that.” And I said, “Really?”
MRS. RONDEAU: Yes, because what does that do to the Tenth Amendment of the U.S. Constitution? Or does the Tenth Amendment protect your state against too much federal government power over you?
MR. FASANO: It’s kind-of a quirk on a Tenth Amendment issue. Whereas most people use the Tenth Amendment to say, “The Constitution doesn’t say that, so therefore, we, the state, have it under our rights.” In this case, the state conferred it to to the U.S. government.
MRS. RONDEAU: When they wrote the Nevada constitution, they probably didn’t realize how big the federal government was going to become. What if Nevada were a border state, and the federal government, to which your state constitution defers, did to Nevada what it has done to Arizona? There are now two lawsuits against Arizona.
MR. FASANO: It boils down to “Are you there for the rule of law, or are you going to side with the illegal aliens coming across that border?” I’ve always been under the belief that the federal government should be siding with the state, in favor of state sovereignty and power held by the people. This is turned upside-down here. I don’t see any way around it other than in a court of law for each one of the states. I think there are 22 states right now that are considering similar laws to Arizona’s.
MRS. RONDEAU: And the state of Missouri has had a similar law since 2005, and the federal government isn’t harassing them.
MR. FASANO: From what I’ve seen of history over the last 100 years, any time the federal government gets a foothold into something, they don’t get out.
Update, September 13, 2010: Mr. Fasano will be meeting with a reporter from the Associated Press today about his Nevada Supreme Court case, but he gave The Post & Email this important news first. He has filed his brief with the Nevada Supreme Court and received a case number. He learned that his case has been placed in a “pilot program,” although he does not know if the “pilot program” was created specifically for his case or was in place before it was filed He said he is going under the assumption that the program was already in place.
The Nevada Supreme Court has requested an additional application and statement from the plaintiffs which Mr. Fasano will begin to write on Monday, September 13. Mr. Fasano also received a telephone call from one of the law firms which donated to Judge Huff’s campaign at a crucial time during the trial and which Mr. Fasano believes was a bribe to sway the judge to exonerate the assailants, prompting Mr. Fasano’s his criminal complaint against the judge. The representative of the law firm requested that Mr. Fasano and Wes McWethy, the plaintiffs, drop their case against the judge. Mr. Fasano said he refused to do so.
He also stated that have found evidence that Judge Aberasturi, who denied them a grand jury hearing, might have been unduly influenced by accepting donations in the form of a bribe from a second law firm, which would mean that two judges out of three in the district could be compromised. Mr. Fasano stated to us: “If judges are bought off like this, there can be no justice for the people. The whole system is rigged, and the corruption appears to be systemic. We should have been granted a grand jury hearing, and it just didn’t make sense when Judge Aberasturi denied our request. Now things are looking a little clearer as to why.”
However, he added: “If we start now, we can get things on the right track in this country in the next 20 years. Things won’t be perfect, and there’s a lot of work to be done, but we can get our country back if we fight to bring back the grand juries. It’s our best protection against government corruption.”