Las Vegas Sun

August 18, 2022

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Jon Ralston:

If there’s no special session, high court should step in

What do you call a place where the secretary of state tells the Supreme Court that a lower court judge isn’t doing his job on the most important political question of the decade — two weeks after the chief justice sent a nearly identical message to the jurist?

A. Nevada

B. A national embarrassment

C. The best place to cover politics in the country

D. All of the above

As you rush to choose “D” here, you have a judge, who once accused the secretary of state of producing “an unreasonable and absurd result,” taking unreasonableness and absurdity to heretofore unimaginable levels by his handling of redistricting. And in so doing, Carson Judge Todd Russell finds himself chastised by a statewide elected official and the highest-ranking judicial authority in Nevada.

I have opined that Gov. Brian Sandoval should clean up the state’s redistricting mess by calling lawmakers, who abandoned their constitutional duty this year, back into session to finish the job. You can read that column here.

But even as I penned that screed, I was unaware that Chief Justice Nancy Saitta had taken the extraordinary step of writing a letter to Russell, who has decided to write his own redistricting laws by appointing three “special masters” and refusing to give them any legal direction. You may recall that the colorful Russell has a strange sense of disclosure — he never told people while he was lambasting Secretary of State Ross Miller for his “ballot royale” special election guidelines that he was a business associate and former law partner of the man who most stood to benefit by his decision to overrule Miller: Now-Rep. Mark Amodei.

Saitta and her colleagues upheld Russell’s decision but made a point of saying Russell not only was wrong to call Miller’s decision “unreasonable and absurd,” but that he came to the right conclusion for the wrong reasons. It was a highly unusual move — to uphold a judge and at the same time indicate his logic and verbiage were worthy of obloquy.

But not quite as unusual as telling a lower court judge in a letter that the high court is concerned about his ability to do his job. That, distilled, is what Saitta said in a letter to Russell dated Sept. 20. (The full correspondence is here.)

Saitta said Russell’s decisions in the redistricting case raise “concerns with the respect to the ability of your court” to get the matter resolved and appealed to and decided by the high court before filing opens next March.

If you don’t think this was a high-level judicial rebuke, consider that Saitta went on to cite her powers under the constitution to “conduct a reasonable inquiry and investigation to determine whether an emergency is of sufficient magnitude to necessitate temporary reassignment of the public’s judicial business.”

Translation: I need to consider whether you are up to this.

Saitta proposed the possibility of appointing a senior judge to assist Russell with his crowded calendar — a suggestion Russell rejected the next day, assuring Saitta, ‘I believe it will not be necessary at this time.”

Or is it?

I cannot imagine the relish with which Miller, unfairly excoriated by Russell, filed his emergency writ with the high court this week, arguing Russell has “impermissibly abdicated” his duty by not making any legal rulings vis a vis redistricting and putting them in the hands of the trio of laymen. How he resisted working in the adjectives “unreasonable” and “absurd” is beyond what my discipline would have been.

Indeed, Miller’s arguments nearly mirror Saitta’s in her letter to Russell, arguing there is “significant doubt about whether the redistricting process can be completed in time to avoid disruption of the 2012 elections. There is no plain, speedy and adequate remedy at law because an order impropriety referring matters to special matters is not an immediately appealable order.”

Translation: This guy doesn’t know what he’s doing, he’s acting outside the law and you need to stop him.

(You can see Miller’s writ here.)

With the governor unwilling to bring the hammer down on lawmakers — or at least not until the parties can reach an agreement behind the scenes — the high court should unspool the manufactured process Russell has begun as soon as possible. I’m sure the justices could argue that March is six months hence, that there is still plenty of time. But redistricting delayed could be redistricting denied, as incumbents and candidates try to decide where to run — or whether to run.

Sandoval won’t call the Gang of 63 into session unless he believes the deal already is done. So for the Supreme Court, which ended the budget crisis and the special election conundrum with timely decisions, to resolve this controversy, too, would be neither unreasonable nor absurd.

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