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CITIZENS’ PERSEVERANCE EXPOSES CORRUPT COUNTY OFFICIALS
by Sharon Rondeau
(Jun. 22, 2011) — The Post & Email previously reported on the case of a Nevada resident and former U.S. Senate candidate who had requested a grand jury hearing to review evidence of criminal activity on the part of Churchill County Judge David A. Huff. His request eventually went to the Nevada Supreme Court after a presiding judge had refused Mr. Fasano’s request. At that time, it was discovered that a grand jury had not met there in 35 years.
The Fifth Amendment to the U.S. Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The grand jury has also been described as “unknown by most sectors of the public.” The function of the grand jury is to “determine probable cause” to issue an indictment or presentment. The Free Dictionary defines the grand jury as:
A panel of citizens that is convened by a court to decide whether it is appropriate for the government to indict (proceed with a prosecution against) someone suspected of a crime.
An American institution since the colonial days, the grand jury has long played an important role in Criminal Law. The Fifth Amendment to the U.S. Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined that there is enough reason to charge the person. Review by a grand jury is meant to protect suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. It has been criticized at times as failing to serve its purpose.
After Fasano prepared his argument and presented it pro se to the Nevada Supreme Court, the court issued a ruling stating that it had “no jurisdiction” to remove Judge Huff from the bench and that Fasano hadn’t presented “enough evidence” against Judge Huff to convene a grand jury to examine the evidence. Of that decision, Fasano told The Post & Email, “The Nevada Supreme Court, along with other judges, is protecting its own.”
However, Fasano and Wes McWethy, Fasano’s co-plaintiff, were not deterred. Fasano stated that the decision of the Supreme Court prompted them to prepare to file racketeering charges against Churchill County public officials. McWethy filed a case exposing the illegal collection of property taxes, and in tandem with Fasano’s grand jury case, exposed the criminality of the judiciary.
MR. FASANO: Wes McWethy and I each brought separate lawsuits, but we did it under cover so they didn’t know it was coming the way it was going to come. We wanted to bring them together, but we didn’t want them to know. So when we did this, we started Wes’s case, and we fought this through the judge in my case. He ruled on the matter when he wasn’t allowed to because his wife was sitting on the County Board of Equalization. We ended up appealing his case to the Supreme Court for disqualification, and it was denied.
The same process required us to go before the State Board of Equalization. We were successful in arguing our case before the State Board such that they admitted that assessors in the state of Nevada were illegally acquiring property tax money by refusing to recognize a veteran who has a disability which includes unemployability. They weren’t recognizing the unemployability, and we proved that in our case using common law and statutory law. What’s important about that is that the Board ruled two separate things: one was that the assessors were violating the law and their actions were unconstitutional by the state constitution. The second issue was that they had to place on record that the county assessors were required, as judicatory authority, to follow state law. Therefore, if they rule against that argument, it’s a violation of constitutional law. So that was on one issue, the veterans’ issue.
The second issue was very similar. The state was improperly placing portable storage containers under real property rules without any justification. What’s happened is that in our discovery of evidence, the State Department of Taxation officer in charge of that has been in collusion with the assessor in Churchill County and generating a guidance letter to assessors when, in fact, the Board said, “No, it’s unconstitutional.” They asked her by what authority she could do this, and she said, “I’m given the authority to do this by the state legislature.” The chairman of the State Board of Equalization basically came unglued on the woman at the meeting and said that she had absolutely no authority to interpret law; she must follow the law as it is written; in other words, the black letter of the law. She was severely chastised during the meeting.
We had informed the Board members that what we had exposed was another unconstitutional application of property tax in the state of Nevada, so there was a problem with its not being equalized across the county. Then we proved before the Board that they were applying the law in an unequal fashion with respect to commercial property and residential property. They weren’t applying it to commercial property, but they were applying it to some, although not all, residential property. When we did that, they declared that the acts of the assessors in Churchill County and several other counties in the state were, in fact, unconstitutional. So we beat them at their own game.
Why was that so important when we brought it all together? First off, we wanted the issue to be brought before a grand jury. If a grand jury had been brought in to the process, they would have seen that what the assessor was doing and what the judge had done were unconstitutional. With that said, on the record at the State Board, it is very clearly annotated, and we used our argument to win the case based on the premise of unconstitutional actions of elected officials. So that’s on record in the State Board. Some people would say, “Well, that doesn’t really mean anything.” But it does, because the State Board is a quasi-judicial tribunal. When it’s quasi-judicial, those orders are a matter of law. That’s how we tied in Wes’s case under the cover of darkness, so to speak. When you bring those two cases together, it proves by the matter of record that the state officers whom you go before, meaning a judge, are required to follow the law. It’s not a difficult concept to grasp. When you can prove that the state is supposed to follow the law and then a judge did not follow the law with respect to the request for a grand jury, it starts to paint a very bleak picture.
The two cases do not appear at first glance to be connected in any way, but they are, because we’re talking about the same judge. We’re talking about the same people involved. The district attorney for Churchill County had a representative in the meeting. Afterward, he approached Wes and me. We were being congratulated from the other citizens at the meeting for taking the fight to them and winning. Aside from that, there were cheers and clapping going on, and they actually had to take a break after our presentation. But when they adjourned, the whole room erupted. After that, Mr. Mingay, the Churchill County Deputy District Attorney, asked us, “Do you realize what you guys have just done?” and we said, “Yes, we understood. We knew exactly what we were doing.” We had it planned out; it took months and months of preparation. It was a well-laid plan.
Then Mingay said, “Well, what’s going to happen is that the entire property tax system is going to be declared unconstitutional.” And he said, “That’s nothing new,” and we said, “What are you talking about?” He then answered, “It was declared unconstitutional in two cases: Bax, and Barta, in which the Nevada Supreme Court ruled that the assessors were operating outside of the constraints of the constitution. They therefore declared it unconstitutional then, and this is just the nail in the coffin which renders it totally shut. Now, we had multiple instances of unconstitutional actions by public officials with regard to the property tax. Mingay agreed with that, but he wasn’t familiar with Barta and the Bax case. So we gave him the case, which we had in our pile (laughs). He looked through it briefly and said, “Oh, my gosh. This is worse than we thought.” I told him, “No, it’s much, much worse than we think.” And he said, “Well, I think what you need to do is go back to your office and talk to your boss.” That was Art Mallory, the district attorney. Art Mallory; Tom Stockard, the new deputy district attorney; Wes and I have all sat down multiple times to discuss this issue, and they knew it was coming. They didn’t say anything, because they were on our side.
About six weeks ago, I had a meeting with Tom Stockard, Art Mallory and Wes. We were all sitting together, and it appears that they were having some problems with Judge Huff in Churchill County. They knew these problems were getting serious; very, very serious, as far as his conduct on the bench in the adjudication process. When we asked them what they were talking about, they said, “We really can’t go into these issues because they’re ongoing. However, you have the best chance of possibly forcing his removal, and that’s what needs to happen.”
So I said to him, “OK, well, you’re the district attorney. Why don’t you do something about it? It’s your job.” And he said, “You’re right; in a normal context, it’s our job; however, he’s our client.” By law, in this state, the district attorney of the county has to represent the judge in a civil or criminal case. So it’s difficult to go after the one whom you have to represent by law. The other problem was that both Art Mallory and Tom Stockard ran as judges against him, so it’s a conflict of interest. So they said that if they presented it, it could be shot down and “It would be best if the issue were addressed from a third party, e.g., you.”
They asked us about our plan of action, and we swore them to secrecy. We know these guys; we’re friends with them, so we were able to trust them and divulge certain things that we had put in place leading up to that point in time. What Art had done just prior to that State Board of Equalization meeting – and we found out about it after the fact – was to tell Mingay to say nothing. Mingay followed his orders. Also, Art had told Mingay that his counsel for the assessor in Churchill County should not appeal the decision of the Board, which is not necessarily his call. It’s the assessor’s call whether she wants to appeal. However, when Mingay or the district attorney says, “You shouldn’t appeal this,” it carries a lot of credibility.
After the State Board of Equalization meeting – and I didn’t know this information until about a week after – I asked Mingay, “Is this ruling by the State Board of Equalization going to be appealed?” and he said, “No, absolutely not.” About a week later, after speaking with Art and Tom again, I found out that the reason it wasn’t appealed is that they understood the relevance and importance of having the issue of state law having to be followed by public officials to be placed on the record. They understood what we were doing; they agreed with it; they thought it was a pretty good plan as well.
We have built a huge, huge case against a judge, a multiple-faceted case in different areas, from totally different directions. Our arguments have always been that we wanted a grand jury to look into some of these issues and be able to intercede and stop some of the problems that we’re having in Churchill County: taxes being collected without just cause; judges ruling on matters when the law says they’re not allowed to; taking bribes. The problem is on a frontal assault, they will beat us every time, because they know the law. That’s their job: they know the law. But they also know how to get around a lot of it. So if you come at them in a flat-out frontal assault where they know it’s coming, you could win, but the odds are against you.
Editor’s Note: The Post & Email asked Mr. Fasano if utilizing a constitutional approach to rein in rogue judges would trump all of the laws upon which the judges rely.
MR. FASANO: Yes. That’s a matter on record now with the State Board, because they clearly talked about the unconstitutional actions of individual public officials. They’ve breached that line. We led them down the path, and once they walked through the door, we slammed the door because they had no choice; they had to say what had to be said. It took a lot to get them there, and we had to be very close-lipped about not revealing our plan to the public. I’m not apologizing for that, but we had to do it to have some level of surprise.
So where does that leave us now? We’re getting ready to file racketeering and constitutional violations against the Third Judicial District Court and the Nevada Supreme Court, because we have four justices who ruled on our cases (Wes’s and my case together) who violated our rights as outlined in the Nevada constitution and the U.S. Constitution for the right to redress…there’s a long list. We also have Section 42 U.S. Code violations and Section 18 U.S. Code violations as well as violations of the state RICO statutes, which is racketeering. When we started pursuing the racketeering, we brought up these issues with Tom Stockard and Art Mallory, and they said something like, “Well, it’s about time!” It wasn’t “Well, why are you going to do that?” It wasn’t “Are you sure you want to do that?” It was “It’s about damn time!” which is a totally different perspective.
As a matter of fact, Tom Stockard made the comment to us in the meeting, “We were wondering when you were going to get to that.” I said, “We would have gotten to it a lot sooner if you had said something,” but he said they were precluded by law. They’re not allowed to bring it up. I don’t fault them for that, because they are in a position to represent the county and a judge. They can’t tell us that kind of thing, as it would be a conflict of interest. However, they asked us, “Now that you are right on the line that we expected you to be on, what are you going to do, and when are you going to do it?” So we told them; that’s when we laid out the plans. And they said, “It’s a solid plan; it’s going to take a little bit of finesse as well as a little persistence; the DA said we have the best chance of bringing Judge Huff to justice, more so than anybody else they’ve ever seen.
Editor’s Note: The Post & Email asked Mr. Fasano, “If you hadn’t taken the initial action of asking for a grand jury, do you believe anyone else would have brought Judge Huff to justice?”
MR. FASANO: No, because he’s been flying under the radar. As you said, these judges have so much power. The more power they get, the more they want. They say they work for the Judiciary and the rule of law, but they don’t. They work for the people! That’s something that I think needs to be brought home to the people. When they lose sight of whom they work for, they lose sight of the matter of law and applying the law equally. That’s one reason why we got it on record in the State Board of Equalization that we are going to follow the black letter of the law. Being a quasi-judicial organization that is replete with judicial review, and they won’t review it – we’ve already gotten notice from the Churchill County district attorney’s office that they’re not going to ask for judicial review – that means that that matter of record is law. So we’re going to follow the law, and so are they. We’re going to hold their feet to the fire. If they’re going to throw a couple of judges under the bus, they’re going to have a problem.
Two months ago, the chief justice of the Nevada Supreme Court provided information to the state legislature which discussed litigants arguing the law pro se, stating that they’re going to do everything possible to support litigants who are filing pro se and uphold the rule of law for those individuals. Well, everything that has happened so far has been contrary to what’s been said. We’re using that also against them in corruption charges. The chief justice is not named in the corruption charges; however, four of the junior justices are. If your chief justice says, “We’re going to uphold the rule of law” and his junior justices are not, does that not present a conflict within the state judiciary?
So we’re going to roll all of these cases together in a well-thought-out plan. We put a lot of time into it. When we did this, we hoped that they would agree to convene a grand jury. What we think will ultimately happen is that when we file the corruption and racketeering charges, suddenly, there is going to be a grand jury. That’s the only thing that they could do to protect themselves. Once a grand jury is opened up, Pandora’s Box will be opened, and unfortunately for them, I have the support of the district attorney of Churchill County. He’s not going to impede the grand jury’s progress, because they want a grand jury.
This is a long story, but I think this is going to be a model which can be used nationwide if people want to follow it and gain control in their local communities. They have a tool they can use if they have their rights stepped on: they can get their grand juries back and clean up the corruption, and it can used anywhere. There are people in Palmdale, CA, who called me on Saturday who want to know how to proceed there. I know we had to wait and see how it panned out for us, and they said, “Well, we never thought of that.” Everybody has looked at the contemporary methods of going after the judiciary as well as corruption in public office, but you have to finesse it in such a way that they don’t see it coming.
We’re making some progress. I would have liked them to come out and rule in my favor, but my expectations were that they would not. When you start threatening the halls of power, they’re going to do everything possible to retain that power. When they fight, they’re going to make mistakes. What you have to do is fashion your fight in such a way that when they make a mistake, they have no argument. That’s how we constructed the arguments. We didn’t want them to be able to have any way to plan ahead.
The next step is the corruption charges. I would be worried if I were they. I’m thinking that the chief justice of the Nevada Supreme Court, by sheer virtue of these corruption charges coming out, will be forced to prompt the recusal of four junior justices, because if their names are in the complaint, they can’t rule on anything. The chief justice is going to be put into a very tight box where what he says and what he does are going to have to match. Granted, a lot of these people don’t care what they say; they’re typical politicians. They’ll say almost anything to get themselves elected or make themselves look good. But in this case, we’re going to put the chief justice in a position where he’s either going to have to show that he is just as bad as they are, or he is going to have to hold their feet to the fire.
Something else we have found out is that the Commission on Judicial Discipline is controlled by a junior justice. I think the junior justices have more power than the Founders intended. The Judiciary is supposed to be part of the system of checks and balances, not one which wields unrelenting power in a totalitarian state over the citizens. There is supposed to be separation of powers between the Judiciary and Legislative Branch as well as the Executive Branch. What we’re finding is that the Judiciary has a lot more power than they’re allowed to have.
Here’s a good example: the grand jury statutes in the state are there. They are put in place by the Legislative Branch of the government; therefore, they’re law.
The issue of Rules of Criminal Procedure and other court rules trumping state law has come up many times before. On top of that, the state judiciary cannot come out with an order that trumps state law, either. If the laws say that a grand jury needs to be empaneled upon proper circumstances, who are they to say that the law is not enforceable? The law is on the books. We made the comment in the State Board of Equalization meeting that if you don’t like the law, have it changed. But until such time, you’re going to follow the law. That was a part of the intent of making sure that that was on the record, and it goes directly to the Judiciary. It applies equally to a judicial tribunal. They may not like the law, but if the law is there, you’re going to follow it until such time as it’s changed.
There is a process to either change law or eliminate law through the legislature. There’s a bona fide, specific process to follow. If they don’t like the laws pertaining to grand juries, fine; have them changed. Unfortunately, that didn’t occur. So who are they to step up and say it doesn’t apply? When a citizen provides more than adequate information and evidence to indicate that the individuals accused have violated the law, I don’t see how they can justify saying that there wasn’t enough evidence. I didn’t create the evidence; that wasn’t by my hand; it was by their own hand. So for them to make the determination that there wasn’t enough was ludicrous in our eyes, because they simply didn’t want to recognize it. The evidence is mounting that we are right: they’re protecting their own.
Look at Walt’s case; you’re seeing the same thing there. You see the same thing down in Arizona, and now we’re starting to see things coming out of California. I think we’ve reached the tipping point. If one is going to restore the Republic, one must first restore the rule of law. Without law, the Republic falls, period. John Adams clearly made those assertions; Hancock made those assertions; all of our founders knew that the rule of law was imperative in holding the Republic together. As we have seen the degradation of law across the country in multiple areas, we’re seeing the Republic fall further into chaos.
Walt has a good argument: when they took away the grand jury, that’s when the problem really started. It took a while for all of this to become evident, and now we’re at a tipping point where either the rule of law is going to be upheld, and that point could be applied to any specific subject matter, or it’s not. And if it’s not, the Republic is going to fall.
You can interject the situation with Obama into that. His eligibility concerns the rule of law. Are we a nation of law or not, and are we going to fashion our approach to the law in a manner that is consistent only with the circumstances at the time? I don’t think that’s what was intended. I think the rule of law was intended to be followed all the time. And the basic premise of the law was for it to be followed all the time. If I do something wrong, I should be held to account. If you do something wrong, the same thing should apply. Why shouldn’t that same process be applied equally to all citizens across the country? Whether you’re Obama, Clinton, or whomever, it shouldn’t matter; the law is the law.
Across the state judiciary, I’m find that they’re somewhat more corrupt than any other organization across the country because they have power to wield, and that’s a problem. If we can’t hold a judge to account for his actions, how are you going to fix anything?
This is very, very deep. A lot of people are not willing to engage in substantive conversations pertaining to the judiciary that are designed to correct the problem. They want quick answers, and there are none. You can see that from how long our case has run and how long Walt’s case has been running. This is a fight that is going to be long-term, not short-term. There is no short-term fix for this; they don’t want a short-term fix. If they got that, they’d be without a job. That’s the problem: a lot of people don’t see that with complex issues, you have to think out of the box. To do that, it takes time.
Unfortunately, I’m afraid that we don’t have much time. I’m not going to back off; it’s too important. I made this point before, and I’ll make it again: if we can reassert the rule of law and the judges are going to be the first to be held to account for their transgressions of the law, we’re going to start seeing elected officials saying, “Oh, wait a second. I could go to jail,” or “I could get thrown out,” or whatever. Then we’ll start to see a substantive change in the established paradigm.
As an update to our interview a few days ago,Wes and I have decided to file two independent actions in the Third Judicial District Court. Both will involve corruption of elected officials with a focus on racketeering. The difference between the two actions is that one will be based on judicial corruption through the District Court and into the Nevada Supreme Court, fraud on the court, 42 U.S.C. violations to include misprison of felony (5 U.S.C.) and constitutional protection violations under an umbrella of “racketeering.” The other (Wes’s), will be based on extortion, fraud, de jure standing of a government office and the furtherance of extending racketeering activities through a governmental illicit enterprise. This case will also be designed to further establish the unconstitutionallity of our state’s property tax system due to its not being equalized. Most notable about this issue is that the Nevada Supreme Court in 2006 already ruled that the system was unconstitutional.
Editor’s Note: The Post & Email will be featuring another interview of Tim Fasano in the near future as he makes an important announcement.