Michael Marking

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Virginia “Sissie” Gallegos TPO

(Some of the court documents are referenced below, with links. Go here for the complete list of all non-trivial court documents on the docket.)

Background

We're not sure what actually started this problem. There are some good people in Austin. However, there are many whose fondest pasttimes are bullying, schadenfreude, kicking anyone who is down, and giving rein to greed and other base impulses. For them, “ethical” means whatever you want that you can do without getting caught.

Austin is situated among ranches and a few mines. Once upon a time, it was a mining center, but the mines closed, and now there is little commerce and half the town is vacant. A few decades ago, there were a couple thousand people there; now maybe a little more than a hundred people make it home. Now, Lander County is one of the poorest counties in Nevada. In days past, the Austin Roping Club conducted cattle roping and other such events, and even had practice times when you could go down and try your hand at roping steers just for fun. Yes, in the city, you might take in a show or game, or go shopping; in Austin, some of the townspeople and neighbouring ranchers might show up at the roping arena to hang around with friends and livestock. Most of the mines shut down, most of the people left, and the Austin Roping Club degenerated into a corral leasing operation that hasn't conducted a roping event for years.

At its low point in 2008 and 2009, you could count the Club members on one hand, and a couple of them, Ruben and Sissie Gallegos, had ninety percent of the corrals and horses themselves. They weren't paying their share of the dues, according to the bylaws, and they said they didn't want to reactivate the club because “a lot of people joining the Club might cause trouble”. In other words, Ruben and Sissie didn't want to lose their below-cost corrals.

We noticed that civility flew out the window after we tried to re-activate the club, to bring roping back to Austin, and, in the process, to get the Club to follow the laws and its own by-laws.

All of this might not be actionable, except that the Roping Arena is Lander County property, and the Roping Club is a quasi-public body. Ruben and Sissie, and Sissie's uncle Ray Williams, Jr, who was then a Lander County Commissioner and also had a corral at the Roping Grounds, acted as if the statutes were unimportant, and the by-laws belong in bathroom stalls. The way Ruben put it, the laws don't matter, and “we don't do things that way in Austin”.

(This wasn't only about us. Ray Williams, Jr., known around here as “Bubbie”, Ruben, and Sissie were falsely claiming that the Roping Club was a tax-exempt, 501(c)(3) organization, which was the only way it would qualify for the special contract it had with Lander County. Bubbie knew better, being the Club's treasurer, so it was a case of outright fraud. But that's another case...)

Ruben and Sissie began to harass us. They threatened to kill our horse (with a .357 magnum), tried to take down the fence which held it in (presumably so that it would get loose, so they'd have an excuse to shoot it), Ruben put his fist in my face and tried to provoke a fight, and so on. Ruben and Sissie let their horses run loose on the Roping Grounds, sometimes over a dozen at a time, in violation of the bylaws; his horses included mares in heat, and our horse was a stallion. With only a corral fence to separate the stallion from the mares, Ruben was begging for trouble. Ruben stalked us. The usual things people do when they go whacko, I guess. They wanted to run us out of the Club.

Finally, in August 2009, we distributed two open letters to the Roping Club members at a meeting. That apparently was the straw that broke the camel's (horse's?) back. Sissie promptly when down to the Court and claimed that we were harassing her(!) and that she was afraid we would do something bad, and filed for a TPO to keep us away from them and from the Roping Club meetings and the Arena.

Austin Township Justice Court No. 09 PO 002/003

Enter Joe Dory, Austin's Justice of the Peace. Joe Dory and Sissie have a history: they share a child Mary Hammon. This is common knowledge in Austin. She was fourteen, he was and is considerably her senior, so it would have been a felony at the time, but, hey, this is Austin, we don't worry about the law here, right?

We learned that in Joe Dory's court, the accused has the burden of proof (he said that from the bench), and serving copies of motions on the opposing party as required by court rules is just another form of harassment. (Yes, he said this from the bench, too, on multiple occasions.) So, if we tried to show we were innocent, that was just more evidence that we were harassing Sissie. Sounds kind of like one of those medieval torture procedures: the only way to prove you weren't possessed by the Devil was to die a horrible death, because if you survived, then your survival certainly proved that you were in cahoots with Satan, and you'd get executed anyway, by some other painful technique.

Joe Dory admits he doesn't understand the law, that he rules with his heart. (I'm not sure his heart is the organ he uses, but that's what he said.) So when he needs to get legal advice, he violates the rules and privately consults with an attorney (he admitted this in court). He sees no problem if this just happens to be the attorney for one of the parties. You can't make this stuff up.

Needless to say, and with Joe Dory still apparently smitten by Sissie thirty five years after their congress, the TPO was granted; he refused to remove it, despite our motion (which was pretty much ignored).

We went to appeal, but Joe Dory told his clerk not to accept our notice of appeal. So we went to the next higher court for a writ to force things along.

Nevada Sixth Judicial District Court No. CV 9953

District Judge Richard Wagner agreed that the Austin clerk ought to have filed the notice of appeal. He cited a Nevada opinion which held that the clerk's duties were purely ministerial, that he or she must file all documents given to her, and that it wasn't for her to decide if the case was appealable.

Then, Judge Wagner decided that, since the statutes didn't explicitly authorize appealing TPOs, they weren't appealable, so trying to appeal them wouldn't do any good, anyway. To grasp what this means, you have to realize that the statutes rarely explicitly give a right to appeal anything. By Wagner's reasoning, almost nothing would be appealable.

Judge Richard Wagner completely ignored the Nevada Supreme Court's decision in another case, that all Justice Court cases are appealable. (Later, we learned that he does that regularly: if you ignore a law, you don't have to come up with a reason not to violate it. Just ignore the inconvenient laws, then you needn't bother to explain why they don't apply in your court!)

So, the obvious next step was to appeal the Sixth Judicial District Court's decision. Then (you can't make these things up) Wagner instructed his own clerk not to process our notice of appeal. He had done the same thing which had been done by Joe Dory, below, after an opinion maintaining that it was improper to have done it.

Without the ability to appeal, we had to go to the Nevada Supreme Court for another writ.

Nevada Supreme Court No. 55539

The Nevada Supreme Court determined that we weren't entitled to a writ, because the District Court's decision was appealable. We were invited to come back for a writ if the District Court clerk failed to file the notice of appeal.

(back to District Court)

After the Supreme Court's decision, the District Court reconsidered and filed our notice of appeal to the Nevada Supreme Court.

Nevada Supreme Court No. 56064

The Supreme Court decided that since the TPO wasn't in the record, and they needed the TPO to decide if it was appealable, then the lower court decision was affirmed. Eh? Consider these three points: (1) The reason it wasn't in the record was that the lower court had refused to file the notice of appeal, which would have caused the record to be transmitted. If the TPO was needed to decide if it was appealable, then the District Court rendered its decision without the necessary evidence. (2) Appeals are made on the record, and extraneous material, not on the record, isn't to be included, so it would have been improper for us to attach it. (3) Judge Wagner's decision was on a point of law, it didn't pertain to any specific TPO, so it doesn't matter whether the TPO was valid or not, it was irrelevant; the validity of that specific TPO was to be determined by the appeal, which wasn't allowed to happen. Catch-22.

We asked for a re-hearing, pointing out that the Supreme Court had missed the unambiguous, obvious point of the appeal. They said no. Then, as allowed by the rules, we sought en banc reconsideration. We're waiting. Meanwhile, in Nevada, a corrupt judge can issue a TPO and there is nothing you can do about it. (You might file an ethics complaint against the judge, but that wouldn't do anything about the TPO itself. Joe Dory's not standing for office again, so the ethics complaint wouldn't bother him anyway, he makes up his rules as he goes along, and ethical matters don't concern him unless they get in his way.)

By the way, the Supreme Court has declared that all justice court cases are appealable. Now they say no. Which is it? Whatever is expedient, it appears.

It seems that Sixth Judicial District Judge Richard Wagner violated both ethics and the statutes. He took judicial notice of the TPO, which wasn't in the record in the District Court. The statutes authorize taking judicial notice of certain materials outside the record, but only before the matter is taken by the judge for consideration. (Some states, such as California, have a different rule, but that's the rule in Nevada.) The statutes also require that if judicial notice is to be taken, the parties must be notified and have the opportunity to object; we weren't notified. Then, although we asked that the entire record be forwarded to the Nevada Supreme Court, the TPO wasn't there. It wasn't our fault: it was the fault of Judge Wagner. All of this was obvious to the Nevada Supreme Court: they even had our request to include the entire record in our appeal.

Yet, the Supreme Court ignored these ethical and procedural lapses. Effectively, Wagner had violated the rules, told his clerk not to file the appeal, then when forced to allow it, sabotaged the appeal by not including the TPO.

In Nevada, concern for legal ethics seems to lacking, and the Nevada Supreme Court doesn't understand, or care, about safeguards (such as appeals) to protect against corruption and even against simple errors. This is almost a classic case of sleeping with the judge. I told an attorney about the problems, and learned that many attorneys are frustrated about the situation. I asked if it was possible to corrupt the Supreme Court by sleeping with one of the justices. Without hesitation, the answer was: the way to corrupt the Supreme Court is to sleep with the Supreme Court law clerks. Examples followed. I don't even know any of the law clerks, so it doesn't seem quite fair.

(As a final irony, we note that Judge Wagner was during part of this time an associate of the Nevada Commission on Judicial Ethics. That doesn't engender a lot of confidence in "the system".)

(back to Austin Justice Court)

After having lost the appeal of the district court case, there wasn't another avenue to correct the problem. The Nevada Supreme Court seemed willing to overlook the misdeeds of Judge Wagner (the Sixth Judicial District Court). Again, complaining about Wagner's poor ethics wouldn't fix the problem. The Supreme Court was reluctant to come down on one of its own, a District Court Judge.

There was another approach, but the hostility shown to us by Joe Dory and Richard Wagner made the chance of its success seem low. That other approach was a motion to vacate the order granting the TPO, on the grounds that Sissie Gallegos had failed to disclose her relationship to the Judge Joe Dory. That relationship disqualified him from sitting on the case, since their common daughter made them too closely related. Under the law, such a close relationship made him disqualified by default, regardless of bias, and there is no way to rebut that presumption of bias. The law calls her failure to disclose “extrinsic fraud”, because it doesn't show up on the record of the case. Such a motion is filed in the same court which was defrauded. The bias of both judges made such a motion look like a futile gesture. We expected that it wouldn't succeed, because Dory was too arrogant to acknowledge that he had acted improperly. After all, he was the judge who asserted that the defense had the burden of proof, the judge who disregarded the law, and ignored our motions, and Wagner only opportunistically followed the law.

However, Joe Dory did not again stand for office, and he was replaced by Judge William Schaeffer in January 2013. Schaeffer was biased, too, acting as advocate for the Gallegoses in another case, prosecuting the case and dispensing with the obligatory adversarial relationship between the parties. However, he signalled at a point that he would like to see these cases settled. Accordingly, sensing an opportunity, in March 2015 we made our motion to vacate, retroactively, the judgments made by Joe Dory.

Our optimism was misplaced. He denied the motion. Judge Schaeffer appears not to have read the case file, believing that the issue had already been ajudicated. Worse, he confused this case with another case, Then he went off on various tangents, discussing irrelevant non-issues and things which weren't to our knowledge in the record of any case.

So, we appealed.

Eleventh Judicial District, Cases CV 10-597 and CV 10-598

Judge Wagner has retired, and the Sixth Judicial District was split, a portion forming the new Eleventh Judicial District, which now serves Pershing, Lander, and Mineral Counties. Austin, which is within Lander County, found itself in the newly-created district, so to the new district the appeal was made. Judge Jim Shirley, formerly of the Sixth District, became the judge in the new Eleventh District for Lander County.

We filed our appeal brief with its Supplement. As of this writing, Sissie Gallegos, Appellee, has not responded to our appeal brief.

Copyright 2018 Michael Marking. All Rights Reserved.
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